The Tripartite Relationship in Insurance: Ethical Dilemmas and Coverage Complexities

Strategies to Navigate the Conflicts of Interest Minefield

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


Conducted on Tuesday, May 5, 2009

Program Materials

This seminar will examine the ethical issues that arise from the relationship among counsel, insurer and policyholder, review coverage implications of that relationship, how the courts and state bars have treated the issues, and best practices for addressing the potential conflicts of interest.

Description

One of the primary concerns facing insurance defense counsel is the tripartite relationship between the attorney, the insurance company and the policyholder. The ethical concerns that arise in this relationship are unique and require careful thought and planning.

The dual client dilemma facing counsel retained by an insurance company to represent a policyholder raises many difficult issues, particularly the potential conflicts of interest when the interests of the policyholder and insurer are not aligned.

Listen as our authoritative panel of insurance law attorneys examines the conflicts of interest and ethical problems facing the insurance company attorney, the insurer and the insured. The panel will focus on the coverage implications of the tripartite relationship, how the courts and state bars address the issues, and strategies for navigating the potential inherent conflicts of interest.

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Outline

  1. Conflicts of interest
    1. Reservation of rights
    2. Claimed damages exceed coverage
    3. Representation of multiple parties
    4. Defense costs reduce available coverage
    5. Punitive damages
    6. Insurer tries to reduce expense by limiting discovery
    7. Disclosures to the insurer
    8. Policyholder’s failure to cooperate
    9. Control of settlement
  2. Coverage implications
    1. Managed litigation practices/procedures
    2. Use of defenses — only token defense?
    3. Steering result to judgment under an uninsured theory of recovery
    4. Later use of confidential information by insurer to its advantage
    5. Settlement
  3. Ethical rules and the state of the law
    1. Ethical rules
    2. State statutes
    3. Court treatment
    4. State bar associations
  4. Strategies for navigating conflicts of interest
    1. Engagement letter
    2. Additional counsel at policyholder’s expense when claim or suit is in excess of limits
    3. Inform policyholder/additional counsel of all settlement negotiations/pertinent information
    4. Inform policyholder/additional counsel of counterclaims

Benefits

The panel will review these and other key questions:

  • What steps can counsel take to identify the conflicts of interest that arise as a result of the tripartite relationship?
  • How is coverage impacted by the tripartite relationship?
  • What strategies can counsel employ to avoid conflicts of interest resulting from the tripartite relationship?
  • What ethical guidelines are available to insurance counsel from state bar canons, rules and opinions and court decisions?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Laura A. Foggan
Laura A. Foggan

Partner
Wiley Rein

She co-chairs the firm’s Appellate Practice and is a member of the Insurance Practice. She advises and represents...  |  Read More

Marc S. Mayerson
Marc S. Mayerson

Partner
Hollingsworth

He specializes in complex insurance coverage disputes including litigation and settlement. He advises clients on...  |  Read More

Ronald S. Berman
Ronald S. Berman

Berman Berman & Berman

He focuses on insurance law, professional liability, quality litigation management and cost control. He previously...  |  Read More

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