Bringing Counsel in from the Cold: Reconciling Ethical Rules with the Quagmire of Insurance Defense Practice

40 Pages Posted: 18 Aug 2018

See all articles by Joseph Regalia

Joseph Regalia

William S. Boyd School of Law, UNLV

Drew Cass

Independent

Date Written: 2018

Abstract

Litigators have a tough job: demanding clients, relentless deadlines, and constant pressure to get everything just right. But insurance defense attorneys deal with this and more. Being an insurance-defense attorney means satisfying two masters: the insurance company that pays the bills, and the insured who stands to lose if the case turns out badly. This is not merely a matter of having to field more phone calls and emails — insurance defense practice poses profound ethical dilemmas not adequately addressed by the existing rules of professional conduct. It is into this ethical morass that we will dive. Our proposed solution is to bring some light to the darkness in the form of specific ethical rules for insurance defense attorneys. To illustrate why change is needed, this article examines at length one of the most common (and yet unanswered) ethical dilemmas in this area: conflicts among insurance companies with competing interests in a case. After thoroughly reviewing the scant existing ethical guidance on this topic, we conclude that the sensible answer is a new set of ethical rules that will give more guidance to everyone involved. We finish with a first stab: a proposed ethical framework governing the insurer conflict we explore in this article. But this is only the first step. More thought and solutions are needed to plug the cost and uncertainty in this corner of legal ethics.

Suggested Citation

Regalia, Joseph and Cass, Drew, Bringing Counsel in from the Cold: Reconciling Ethical Rules with the Quagmire of Insurance Defense Practice (2018). New Mexico Law Review, Vol. 48, No. 452, 2018, Available at SSRN: https://ssrn.com/abstract=3226671

Joseph Regalia (Contact Author)

William S. Boyd School of Law, UNLV ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
6508899272 (Phone)
89154 (Fax)

Drew Cass

Independent ( email )

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