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Ethical Duties of Insurance Defense Counsel to Preserve Coverage

Strategies for Preventing Discovery of and Handling Information the Insurer Could Rely Upon to Deny Coverage

Includes 90 Minutes of Ethics Credits

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, September 12, 2023

Recorded event now available

or call 1-800-926-7926

This CLE webinar will discuss the ethical and practical duties and obligations of counsel appointed to defend the policyholder with respect to preserving coverage for the policyholder. The program will discuss ABA Formal Opinion 08-450 and related Model Rules of Professional Responsibility, what appointed counsel is expected to know about coverage issues, and how appointed counsel could structure discovery to avoid coverage issues in various types of cases. The program will also consider estoppel and the legal obligations of an insurer that has obtained from defense counsel information that supports denying coverage when defense counsel was unaware it did so.


Appointed counsel owes duties of competence, loyalty, and confidentiality to the insured it is defending. Appointed defense counsel can share with insurance carriers information about the cases they have been retained to defend, but that authority is not unlimited. The policyholder must be advised of these limits, and consent obtained to share potentially negative information.

Counsel must recognize information that could affect coverage, regardless of the source, and take proactive measures to keep it confidential, while still complying with obligations owed to the insurer. If assigned counsel unwittingly provides the insurer with information that it could use to support denying coverage, the insurer may be estopped to use it.

Appointed counsel may need to employ discovery plans and strategies that avoid coverage issues. Special difficulties can arise if the policyholder, after full disclosure, wants to pursue coverage to which it is not entitled.

Listen as this experienced panel discusses the ethical and practical duties and obligations of counsel appointed to defend the policyholder with respect to preserving coverage for the policyholder.



  1. How the issue arises
  2. Relevant Model Rules and opinions
    1. ABA Formal Opinion 08-450
    2. Model Rules: 1.2, 1.4, 1.6, 1.7
  3. Obligations and options if appointed counsel has information:
    1. Possibly affecting coverage
    2. Almost certainly vitiating coverage
  4. Avoiding coverage issues in discovery
  5. Estoppel to deny coverage using information defense counsel did not know affected coverage


The panel will review these and other key issues:

  • What level of knowledge must appointed counsel have about coverage issues under the Model Rules?
  • What is the best strategy if the policyholder seeks coverage to which the policyholder is not entitled after defense counsel has explained the matter?
  • How can and should defense counsel take affirmative steps to preserve and protect coverage in discovery and throughout the case?


Callantine, Renee
Renee C. Callantine

Cornerstone Law Group

Ms. Callantine is the head of the Firm's insurance coverage practice. Her practice is primarily concentrated on...  |  Read More

Culver, Christina
Christina Anne Culver

Thompson, Coe, Cousins & Irons

Ms. Culver represents clients in insurance coverage matters. She provides guidance for coverage and bad faith...  |  Read More

Rowe, Todd
Todd M. Rowe

Constangy, Brooks, Smith & Prophete

Mr. Rowe leads the investigation and evaluation of potential breaches of data security, such as those caused by...  |  Read More

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