Bringing Counsel in from the Cold: Reconciling Ethical Rules with the Quagmire of Insurance Defense Practice
40 Pages Posted: 18 Aug 2018
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: Suggested Citation