Professional Responsibilities of Insurance Defense Counsel
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Insurance defense counsel have unique and complicated professional responsibilities arising from their dual relationships with the insured who is being defended and the insurer who is providing the defense and must pay the judgment or settlement (assuming it is covered). Professional Responsibilities of Insurance Defense Counsel provides the only comprehensive treatment of this subject with detailed guidance for defense counsel retained by an insurance company as well as for the company itself, covering every step of the representation.
From the formation of the attorney-client relationship(s), through the necessary initial communications with the insured, and into the trial or settlement that normally concludes the representation, this publication covers the gamut of complex issues that may arise in the course of the defense. It examines the special issues affecting insurance staff counsel, the circumstances in which the insured is entitled to independent counsel, and the responsibilities and liabilities of independent counsel when representing the insured. It provides the following user benefits:
- It offers detailed guidance (and sample letters) on the widely overlooked topic of initial communications with the insured. Proper handling at the outset of the relationship is essential to avoiding certain ethical difficulties and malpractice exposures that can arise at later points in the representation.
- It provides extensive analysis of a wide range of situations to determine when an insured does or does not have a right to independent counsel. The selection of the appropriate defense counsel is of crucial concern to the insured and insurer alike. Additionally, the need of defense counsel to avoid a conflict of interest is a paramount ethical concern for the defense counsel.
- It examines knotty and unresolved issues regarding defense counsel's duties of confidentiality and communication, when those duties to the insured and to the insurer collide with one another. Wrong determinations as to what must be kept confidential and what should be disclosed can be devastating to the interests of the insured and insurer alike.
- It uniquely examines the rights and obligations between an insurer and independent counsel who defends an insured. The publication can resolve the myriad issues confronting an independent counsel who owes duties to both the insured and the insurer.
- States and scholars often have differing views on many pertinent issues involving independent counsel, and this publication takes account of all significant lines of authority and all major scholarship. The publication provides the gamut of positions on key issues affecting the tripartite relationship among the insured, the insurer and insurance defense counsel and provides practical information no matter what jurisdiction governs the issues at hand.
Table of Contents
Chapter 1 Controversies Over Insurance Defense Counsel’s Professional Responsibilities
Chapter 2 Context: The Liability Insurance Policy
Chapter 3 Retention of Insurance Defense Counsel
Chapter 4 Whom Does Insurance Defense Counsel Represent?
Chapter 5 Duty of Loyalty
Chapter 6 Policyholder’s Rights to Independent Counsel
Chapter 7 Insurer Use of Staff Counsel
Chapter 8 The Scope of Defense Counsel’s Engagement
Chapter 9 Defense Counsel’s Duties to Communicate
Chapter 10 Confidentiality and Sharing of Information Among Carrier, Policyholder, and Defense Counsel
Chapter 11 Adjuster Involvement in Defense Planning and Decision Making
Chapter 12 Watching for and Reacting to Possible Conflicts Between Companies and Policyholders or Between Co-Client Policyholders
Chapter 13 Compensating Defense Counsel
Chapter 14 Rights and Obligations When Policyholder Has Independent Counsel