How Independent Am I? Ethical Obligations of Independent Counsel

Transcription

1 How Independent Am I? Ethical Obligations of Independent Counsel 2017 Law School Seminar UC Hastings College of the Law February 10, 2017 Carl Metzger, Goodwin Procter LLP Sara M. Thorpe, Nicolaides Fink Thorpe Michaelides Sullivan LLP Morris Ratner, Assoc. Prof., UC Hastings College of the Law Moderator 1

2 Introductions Morris Ratner, Assoc. Professor UC Hastings College of the Law Moderator Carl Metzger, Goodwin Procter LLP Sara Thorpe, Nicolaides Fink Thorpe Michaelides Sullivan LLP 2

3 Overview of Presentation Review basic principles Insurer s duty to defend Defense counsel s ethical obligations Insured s right to independent counsel Examine issues that can arise for independent counsel Requirement to, and limitations on, communicating with and reporting to insurer Risks in disclosing information to insurer Insurer billing guidelines Third party audit of counsel s bills 3

4 Review of Basics: Insurer s Duty to Defend Primary insurance policy Duty to defend as well as indemnify (i.e., pay covered claim) the Company shall have the right and duty to defend any suit against the insured seeking damages on account of bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent... Duty to defend broader than duty to indemnify Insurer right to select counsel and control defense Insurer use of panel counsel 4

5 Review of Basics: Tri partite Relationship When insurer defends insured, a tripartite relationship exists: Where insurer retains counsel to defend its insured, tripartite relationship exists among (1) insurer, (2) insured, and (3) defense counsel Premise is that both insured and insurer have common interest in defeating, minimizing, or resolving claim against insured Defense counsel has two clients (insured and insurer) Confidential communications between counsel and either/both insurer or insured are protected by attorney client privilege and both insurer and insured hold the privilege Attorney s work product is protected when transmitted to insurer However, some states do not recognize tri partite relationship and hold insured is the only client (see e.g., Ark., Conn., Mont., Mich.) 5

6 Review: Counsel s Ethical Obligations Confidentiality, communication, and competence Confidentiality o ABA Model Rule of Prof. Conduct 1.6 (applies in 49 states, D.C., and U.S.V.I) o California Business & Professions Code 6068(e)(1); California Rule of Professional Responsibility Communication o ABA 1.4 o Cal. Bus. & Prof. Code 6068(m); Cal Competence o ABA 1.1 o Cal

7 Review: Counsel s Ethical Obligations Duty of Confidentiality in general: ABA Rule 1.6: (a) lawyer shall not reveal information relating to representation unless client gives informed consent, disclosure is impliedly authorized to carry out representation, or disclosure is permitted by paragraph (b) (c) lawyer shall make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information Cal. Bus. & Prof. Code 6068(e)(1); Cal Attorney s duty: To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client Rule 3 100: A member shall not reveal information protected from disclosure by 6068(e)(1) 7

8 Review: Counsel s Ethical Obligations Duty of Confidentiality in general (cont d): Fosters the trust that is the hallmark of the client lawyer relationship ABA 1.6, Comment 2; Rule 3 100, Comment [1] Includes matters communicated in confidence by client (i.e., protected by attorney client privilege and work product), and Extends further to information relating to the representation, whatever its source Rule 3 100, Comment [2] Survives termination of attorney client relationship ABA 1.6, Comment 20 8

9 Review: Counsel s Ethical Obligations Duty of Confidentiality exceptions allowing disclosure: Implied authorization includes reporting to insurers (See ABA comments) Disclosure permissible, e.g.: To the extent lawyer reasonably believes disclosure is necessary to prevent a criminal act the lawyer reasonably believes is likely to result in death or substantial bodily harm (3 100(B)) Even then must try to limit disclosure (3 100(D)) To prevent death or bodily injury (ABA 1.6 not necessarily tied to crime) To prevent crime/fraud (ABA 1.6) To secure legal advice about lawyer s compliance with Rules (ABA 1.6) 9

10 Review: Counsel s Ethical Obligations Duty of Communication: ABA 1.4: A lawyer shall : keep client reasonably informed about status of the matter; and explain matters to extent reasonably necessary to permit client to make informed decisions regarding the representation (ABA 1.4(a)(3); 1.4(b)) Cal. Bus. & Prof. Code 6068(m); RPR 3 500: Lawyer shall : keep client reasonably informed about significant developments relating to the representation includes promptly complying with reasonable requests for information and significant documents when necessary to keep client informed 10

11 Review: Counsel s Ethical Obligations Duty of Competence: ABA 1.1: A lawyer shall provide competent representation Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for representation Cal : Lawyer shall not intentionally, recklessly, or repeatedly : Fail to perform legal services with competence Competence means applying diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary to serve If insufficient learning /skill at outset, can become competent by associating with or consulting with competent lawyer or learning Includes duty to supervise associates/staff 11

12 Review: Right to Independent Counsel Many states have not addressed Some states hold counsel for insured should be independent but do not have a statute or clear case law of what that means Enhanced obligation Wash.: Tank v. State Farm, 105 Wash. 2d 381, 390 (1986) Some states have clear case law or statute Ill.: Maryland Cas. Co. v. Peppers, 64 Ill. 2d 187, (1976) Calif.: Cal. Civ. Code 2860; San Diego Navy Fed. Credit Union v. Cumis Ins. Soc., Inc., 162 Cal.App.3d 358 (1984) Or. (in environmental context): ORS

13 Review: Right to Independent Counsel When independent counsel has been selected by the insured, it shall be the duty of that counsel and the insured to disclose to the insurer all information concerning the action except privileged materials relevant to coverage disputes, and timely to inform and consult with the insurer on all matters relating to the action. Cal. Civ. Code 2860 Rationale: [T]he insurer is paying the legal expenses. Fidelity Nat. Financial, Inc. v. National Union Fire Ins. Co., 2014 WL , at *6 (S.D. Cal. 2014) Effect: Informational, no attorney client relationship between the insurer and independent counsel. San Gabriel Basin Water Quality Auth. v. Aerojet General Corp., 105 F. Supp. 2d 1095, 1101 (C.D. Cal. 2000) 13

14 Potential Issues for Independent Counsel What can independent counsel communicate? Reporting obligation limited to non privileged communications. First Pacific Networks, Inc. v. Atlantic Mut. Ins. Co., 163 F.R.D. 574, 582 (N.D. Cal. 1995): [T]he insured and its independent counsel retain fully the right to communicate between themselves in private and to shield those communications from the carrier. Id. at 580 [T]he duties specified in Civil Code section 2860 that Cumis counsel owes the insurer are limited to the duties to disclose, inform, consult and cooperate regarding nonprivileged information. Assurance Co. of Am. v. Haven, 32 Cal. App. 4th 78, 90 (1995) 14

15 Potential Issues for Independent Counsel What can independent counsel report? Defense counsel has a duty to protect the attorney client privilege See State Farm Fire & Cas. Co. v. Superior Court, 216 Cal. App. 3d 1222, 1228 (1989) (noting it was independent counsel s obligation to guard against improvident revelations to the insurance company ) At the same time, an insurer has right to reporting and may be able to assert a cause of action for negligent breach of statutory duty based on lack of reporting Assurance Co. of America v. Haven, 32 Cal. App. 4th 78, 92 (1995) 15

16 Issues for Independent Counsel Does attorney client privilege extend to insurer communications? Yes: Any information disclosed by the insured or by independent counsel is not a waiver of the privilege as to any other party. Cal. Civ. Code 2860(d) Rationale: Avoids chilling effect the insured would be faced with the decision to either provide information to [its insurer] or face denial of defense and coverage for failure to cooperate Lectrolarm Custom Systems, Inc. v. Pelco Sales, Inc., 212 F.R.D. 567, 571 (E.D. Cal. 2002) However, not necessarily the rule in other jurisdictions: Interests between insurer and independent counsel not sufficiently aligned to protect information from disclosure Go Medical Indus. Pty., Ltd. v. C. R. Bard, Inc., 1998 WL , at *4 (D. Conn. 1998) (reversed in part on other grounds) In re Pfizer, Inc. Secs. Lit., 1993 WL , at *8 (S.D.N.Y. 1993) (same) 16

17 Potential Issues for Independent Counsel Insurer s billing guidelines A lawyer shall not permit a person who pays the lawyer to render legal services for another to direct or regulate the lawyer s professional judgment in rendering such legal services. ABA 5.4(b) A lawyer shall not accept compensation [from another] for representing a client unless: (1) there is no interference with the lawyer s independence of professional judgment Cal (F)(1) Insurer imposed restrictions on discovery or other litigation costs may well violate the insurer's duty to defend as well as the attorneys' ethical responsibilities to exercise their independent professional judgment in rendering legal services. Dynamic Concepts, Inc. v. Truck Ins. Exchg., 61 Cal.App.4th 999, 1009 (1998) (but no evidence that had happened) 17

18 Potential Issues for Independent Counsel Insurer billing guidelines, cont d Prior approval regarding billing and practice rules violate defense counsel s duty to exercise independent judgment and his/her undivided loyalty to the insured in re Rules of Prof'l Conduct & Insurer Imposed Billing Rules & Procedures, 299 Mont. 321 (2000) Requiring advance consultation to perform certain tasks is appropriate so long as insured s confidential information that might be used to defeat coverage is not revealed. Kent D. Syverud, The Ethics of Insurer Litigation Management Guidelines and Legal Audits, 21 INS. LITIG. REP. 180 (1999) 18

19 Potential Issues for Independent Counsel Third party audit of counsel s bills Insurer s disclosure of privileged information, such as attorney invoices, to a third party auditor may constitute a waiver of privilege, even where defense counsel s disclosure to insurer was protected In re Rules of Prof. Conduct & Insurer Imposed Billing Rules & Procedures, 299 Mont. 321, 347 (2000) (privilege waived absent insured s timely informed consent) 19

20 Ethical Obligations of Independent Counsel Questions Thank you 20