insurance defense ethical pitfalls for counsel and claims professionals

Insurance Defense Ethical Pitfalls for Counsel and

Claims Professionals

www.gcandh.com

Expectations

Ethics Generally

Definition of ethics noun

1 [usually treated as plural] moral principles that govern a person’s or group’s behavior

Note: the definition does not refer to lawfulness

Rationalization

Handicap Parking Example

Independent Judgment

SCR 3.130(5.4(c))

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Retention by Third Party

S.C.R. 3.130(1.8)(f)

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:•(1) the client gives informed consent;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

Who Is The Client?

The Insured is the Client

Ethics Opinion KBA E-331

This is so because the insured is defense counsel’s client. The insured is entitled to competent and zealous representation, and a defense that is not adversely affected by prohibited conflicts of interest.

Horns of a Dilemma

Reporting to Insurer


Ethics Opinion KBA E-410An attorney must be ever vigilant, pursuant to KRPC 1.1 and 1.3, to identify information that might be disadvantageous to the client Insured and to refrainFrom disclosing such information absent fully informed client consent. If the attorney is competent and diligent in this regard and yet forwards to the Insurer information not known to the attorney to be damaging, no unethical conduct has occurred.



The contract of insurance between the Insurer and the Insured pursuant to which the Insurer provides the defense commonly allows the Insurer to have some measure of control regarding the defense provided and commonly requires that the Insured cooperate in the defense. Such is a matter of contract and may govern the rights of the Insurer and the Insured as to each other.



The contract of insurance does not, however, define the ethical duties an attorney hired by an Insurer to defend an Insured owes to the client Insured. KRPC 1.4 states that the attorney should keep the client “reasonably informed” and that the attorney should “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Thus, the attorney hired by the Insurer to defend the Insured should, at the beginning of the client-lawyer relationship, explain to the client the nature and requirements of the Insurer and Insured contract.


Ethics Opinion KBA E-340An insurer may have every right to conduct such investigation as it sees fit, and may deal with its insured in a manner permitted by the terms of the insurance contract. On the other hand, it is not necessarily entitled to the assistance of the lawyer representing the insured. Defense counsel’s relationship with the insured is not governed by the insured-insurer contract, but is instead governed by the Rules of Professional Conduct. Discussions with a client may reveal facts affecting coverage (may suggest coverage defenses). Counsel should resist any ‘demand’’ that might put the insured at risk. It is also clear that any intrusion into the attorney/client sanctum should be permitted only with the informed consent of the client.

Reservation of Rights

Reservation of Rights


. . . the attorney must be ever mindful that with regard to this tripartite relationship the attorney’s client is the Insured and not the Insurer. As part of the duties of competence and diligence and the duty to communicate with the client discussed above, the attorney should explain the nature of a defense under reservation of rights to the client. When the Insurer provides the defense under a reservation of rights, the possibility exists that an impermissible conflict of interest is created.

Reservation of RightsEthics Opinion KBA E-410

When an attorney represents an Insured and the Insurer is providing the defense under a reservation of rights, the attorney must analyze the situation under the general conflict of interest rule, KRPC 1.7(b). KRPC 1.7(b) states that a ‘lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless” two conditions are satisfied.

First, the lawyer must “reasonably believe that the representation will not be adversely affected.”

Second, the client must consent after consultation.”

Bad Faith Claims

Bad Faith Claim


May a lawyer paid by insurer to defend an insured in a personal injury action in which claims are also made against the insurer under the UCSPA represent both the insured and the insurer?

It is the Committee’s position that defense counsel should be free to abide by the insured’s decisions concerning the objectives of the litigation and settlement, should be not subjected to competing loyalties that may compromise the lawyer’s ethical obligation to hold inviolate confidential information of the client, and should not be required by an insurer to seek the consent of the insured to dual representation.

Cost Control and Independence

The Insurer’s Perspective

The Attorney’s Perspective


A typical liability policy may contain language such as this:

We will have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury", "property damage", "personal injury", or "advertising injury" to which this insurance does not apply, We may at our discretion, investigate any "occurrence" and settle any claim or "suit" that may result.


Inherent in all of these potential conflicts is the fear that the entity paying the attorney, the insurer, and not the one to whom the attorney is obligated to defend, the insured, is controlling the legal representation.

American Ins. Ass'n v. Kentucky Bar Ass'n, 917 S.W. 2d 568, 573 (Ky. 1996)


American Ins. Ass'n was not the first time we rejected a "rule [that] would be inimical to the preservation of traditional and longstanding concepts associated with attorney-client relationship, as recognized by Kentucky law." [Citation omitted]. Our courts simply cannot ignore Kentucky's consistent refusal to allow the insurer any right to control the attorney's independent manner of representing its insured. That independence has a long history.

Cincinnati Insurance Company v. Hofmeister, 2004-CA-002296-MR (Ky.App. 2008).

Restrictions on Tasks

Restricting Tasks

Ethics Opinion KBA E 416

May the lawyer accept representation under guidelines that:

a. Require approval by the insurer before the lawyer undertakes any discovery, conducts any legal research, or files any motion?

Answer: No. The lawyer may agree, however, to guidelines setting a reasonable, tentative budget and providing a process for ongoing consultation.

Restricting TasksEthics Opinion KBA E 416

May the lawyer accept representation under guidelines that:

b. Require all investigative work or all records review to be performed only by the insurer’s employees or, if performed by the lawyer’s firm, to be billed only at a paralegal rate?

Answer: No. The lawyer may agree, however, to guidelines establishing an appropriate allocation of lawyer and non-lawyer/paralegal tasks, or setting a reasonable tentative budget for investigative work or document review, and providing a process for ongoing consultation.

Restrictions on Budget



A restricted budget for the defense can pose an ethical dilemma for defense counsel. This is so because the insured is defense counsel’s client. The insured is entitled to competent and zealous representation, and a defense that is not adversely affected by prohibited conflicts of interest. At some point, carrier imposed restrictions may threaten counsel’s ability to provide such representation and impact on the lawyer’s ability to bring to bear his independent professional judgment on behalf of the insured. Occasions may arise in which the insurer’s budgetary restrictions will justify, or require, withdrawal.



We are not suggesting that counsel has carte blanche to needlessly run up a bill. Such conduct would be just as reprehensible as yielding professional control of his or her work to an adjuster or claims manager. Nor are we suggesting that costs and expenses are not a legitimate concern of the insurer. Conflicts are not inevitable, or irreconcilable. Presumably these matters can be resolved amicably and responsibly in the great majority of cases.

Stealing is Stealing

Third Party Audits

Third Party Audits


Question 1: Would Law Firm’s submitting its Insurance Company bills directly to Audit Company, rather than to Insurance Company, without the law firm’s obtaining the fully informed consent of the insured, violate the Kentucky Rules of Professional Conduct?

Answer: Yes

Third Party Audits


Question 2: Would the Law Firm’s submitting other clients’ bills to Audit Company violate the Kentucky Rules of Professional Conduct?

Answer: Yes

Third Party Audits


The Committee agrees with the views expressed in South Carolina Bar Op. 97-22 that a lawyer may submit his or her bills directly to a third-party auditing firm only with the informed consent of the insured as well as the insurer, and only so long as the lawyer reasonably believes that doing so will not substantially and adversely affect the representation of the insured client.

Third Party Audits


Question: If an attorney is defending an Insured with the defense being provided by an Insurer pursuant to an insurance contract between the Insurer and the Insured, and if that attorney is aware that the attorney’s legal bills sent to the Insurer are forwarded to an outside auditing firm, what do the Kentucky Rules of Professional Conduct require of the attorney?

Answer: The attorney must obtain fully informed consent from the Insured, the client, before forwarding legal billing information to the Insurer if the attorney knows the Insurer will send the billing information to an outside auditor.

Third Party Audits


The attorney should explain the implications of such a procedure to the client and obtain the client’s fully informed consent before providing the Insurer with detailed billing information. In so doing, the attorney should also discuss with the Insured client the implications, with regard to the insurance contract between the Insurer and the Insured, that may flow from the Insured’s failure to consent to the release of legal billing information.

Third Party Audits


If the attorney counsels the client Insured about the possible consequences of the disclosure of the legal billing information and the client consents to the disclosure, the attorney must follow the instruction of the client Insured and disclose the information. If the attorney believes disclosure to be contrary to the best interests of the client Insured, the attorney should counsel the client as to the attorney’s belief. If the client consents to the disclosure contrary to the attorney’s advice, the attorney may seek a permissive withdrawal from the representation pursuant to KRPC 1.16(b).

Third Party AuditsKRE 503

(2) “Representative of the client” means:

(A) A person having authority to obtain professional legal services, or to act on advice thereby rendered on behalf of the client; or

(B) Any employee or representative of the client who makes or receives a confidential communication:

(i) In the course and scope of his or her employment;

(ii) Concerning the subject matter of his or her employment; and

(iii) To effectuate legal representation for the client.

See Asbury v. Beerbower, 589 S.W.2d 216 (Ky. 1979)

Insurer Guidelines

Paying Bills

Insurer Guidelines


Question 1: In general, may an insurance defense lawyer agree to abide by insurer-prescribed case handling guidelines in representing the insured?Answer: A lawyer may not agree to abide by such guidelines unless:

a) the lawyer determines that the guidelines will not interfere with the lawyer’s independent professional judgment and other duties owed to the insured under the Kentucky Rules of Professional Conduct; and

Insurer GuidelinesEthics Opinion KBA E 416

Question 1: In general, may an insurance defense lawyer agree to abide by insurer-prescribed case handling guidelines in representing the insured?

Answer: A lawyer may not agree to abide by such guidelines unless:

b) the lawyer discloses the guidelines’ existence to the insured, and provides a practical explanation of their import, at the outset of the representation and as may become necessary in specific situations thereafter, and the insured consents after consultation to any guideline that materially limits the representation; and

Insurer Guidelines


Question 1: In general, may an insurance defense lawyer agree to abide by insurer-prescribed case handling guidelines in representing the insured?

Answer: A lawyer may not agree to abide by such guidelines unless:

c) the lawyer, upon undertaking the representation, performs all duties imposed by the Rules, regardless of compensation under the guidelines, so long as the representation continues.

Insurer GuidelinesEthics Opinion KBA E 416

The lawyer-insurer relationship contemplates a process for ongoing consultation. Such consultation must be genuine, with the lawyer basing each expenditure or activity request on the needs of the insured, and the insurer giving each request careful consideration in light of the lawyer’s independent professional judgment. If the insurer’s guidelines do not provide such a process, the lawyer should decline a proffered representation. In any event, the lawyer must not undertake, and an insured client cannot be asked to accept, a representation so limited in scope that it abridges the client’s rights, or narrows the lawyer’s duties, under the Rules. See Comment 5 to Rule 1.2. After the representation of a client has begun -- and continuously thereafter until the representation concludes or is properly terminated under Rule 1.16 -- the lawyer must perform his or her professional duties fully, and must exercise independent professional judgment in loyalty to the client, regardless of limitations imposed by the insurer.

Just Talk

Alternative Fee Arrangements

AFAs


Question: May a lawyer enter into a contract with a liability insurer in which the lawyer or his firm agrees to do all of the insurer’s defense work for a set fee.

Answer: No.

American Ins. Ass’n v. Kentucky Bar Ass’n, 917 S.W.2d 568 (1996)

AFAs


Yet, here the insurer wants to continue to promise the insured a defense in the contract of insurance, while limiting the extent of its undertaking in a side contract between the insured’s lawyer and the insurer to which the insured is not a party. Compare E-331 (1988). Furthermore, the lawyer is placed, by the insurer (a third person paying for the lawyer’s services), in a position of conflict vis-a-vis the insured client. To some extent the lawyer becomes the insurer; and lawyer stands to gain by limiting the services rendered to the client. See Rules 1.1 and 1.2, as well Rule 1.7(b). Admittedly, a potential for similar conflict is inherent in other lawyer-client arrangements; but here the insured client will have no control over the choices that will be made.

AFAsAmerican Ins. Ass’n v. Kentucky Bar Ass’n, 917 S.W.2d 568 (1996)

Respondent was able to cite to nineteen such conflicts, including representation of the insured which becomes more complex than anticipated, resulting in financial hardship for the attorney; policy and/or coverage defenses asserted by the insurer against the insured; and disagreement between the insured and the insurer with regard to settlement negotiations. Moreover, we do not believe that in most instances the interests of the insured and the insurer are alike, but are more apt to agree with Respondent’s contention that while the insured and the insurer may share some common interests, the two parties are subject to complete divergence at any time. Inherent in all of these potential conflicts is the fear that the entity paying the attorney, the insurer, and not the one to whom the attorney is obligated to defend, the insured, is controlling the legal representation.

Good Ethics is a Habit

Let’s Be Ethical

Insurance Defense Ethical Pitfalls for Counsel and

Claims Professionals

www.gcandh.com

insurance defense ethical pitfalls for counsel and claims professionals

Documents

client insured

insured contract

clientlawyer relationship

defense counsels client

insurer information

informed client consent

insurerethics opinion

contract of insurance