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Insurer Loss of Attorney-Client Privilege With Outside Coverage Counsel: Practitioner Strategies To Limit Fallout

Scope of Waiver, Leveraging Objections to Discovery, Limiting Admissibility, Preparing for Depositions of Outside Counsel

A live 90-minute CLE video webinar with interactive 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.

Tuesday, July 2, 2024

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE webinar will offer guidance to insurance practitioners about how to proceed if the insurer's attorney-client privilege or attorney work product immunity with respect to communications with outside coverage counsel is waived or held inapplicable. The panel will review best practices for protecting the communications in the first place, but devote significant attention to how to handle and prepare for discovery and depositions of outside coverage counsel including those who prepared or even ghost-wrote a reservation of rights letter.

Description

Insurers naturally go to great lengths to protect the attorney-client privilege and work product immunity for communications with outside coverage counsel. But with increasing frequency, policyholders are successfully arguing that those protections do not apply or have been waived.

One frequent argument is that coverage counsel was engaged in claims handling activities, not providing legal advice. Whether advising the insurer or policyholder, counsel need to understand and be able to recognize the difference between the two roles, and insurers will want to have policies and procedures in place to keep the two separate.

But practitioners need a strategy if the privileges are not recognized or lost. They first must understand the scope of the waiver, arguments to limit it, and whether any statutory tools might be available to reduce the damage. Even if material is not privileged, it may still be not discoverable or admissible on other grounds, such as relevance. If coverage counsel is noticed for deposition then care should be taken in preparing for questioning and trying to limit the scope of examination. Counsel must also be prepared to deal with what happens if the coverage analysis admits liability of the insured.

Listen as this experienced panel of insurance attorneys discusses best practices for protecting the privilege and then best strategies for dealing with its loss.

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Outline

  1. Protocols for preventing waiver
  2. Scope of waiver and strategies to limit the waiver
  3. Post-waiver strategies

Benefits

The panel will discuss these and other key issues:

  • What is the scope of the waiver in different situations?
  • What are the short and long-term damage of waiver to the specific case and to the category of case?
  • What is the effect of loss of privilege or work product status when there are multiple insurers involved in the defense?
  • What happens if loss of the privilege/work product reveals facts that result in liability of the policyholder?

Faculty

Nawaday, Kan
Kan M. Nawaday

Partner
Venable

Mr. Nawaday is a seasoned trial, investigations, and criminal defense lawyer. A former Southern District of New York...  |  Read More

Additional faculty
to be announced.
Attend on July 2

Cannot Attend July 2?

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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