Many times, lawyers for insureds attempt to make an insurance company’s pre-litigation coverage counsel a witness. I have faced two arguments on this issue. I have been a witness in a couple of cases, and must say that I do prefer the role of attorney. But, I think it is useful to debunk the two primary arguments litigants use to attempt to turn the pre-litigation coverage lawyer into a witness.
First, insureds argue that the pre-litigation coverage lawyer was merely performing an investigator’s job – one that could have been performed by the insurance company as opposed to the lawyer. The law simply does not support that conclusion, so long as the lawyer is actually rendering legal services, and relying upon his or her skill, training and expertise to do so. While there may be some similarity between functions of an attorney and the claims adjuster in investigating a loss, only where the attorney would act as a claim adjuster in his “pure, ordinary business function” should a Court even entertain making the attorney subject to discovery. See e.g. In re Allen, 106 F.3d 582, 602-03 (4th Cir. 1997).
Obviously, lawyers do not become involved in the majority of insurance claims, and particularly not as routine investigators. Their expertise is often needed, and it is because of that expertise that the attorney –client privilege should remain intact. Thus, there is a:
great body of law holding that confidential communications made to attorneys “hired to investigate through the trained eyes of an attorney” are privileged. . . .
Accordingly, we must reject the legal theory . . . that the attorney-client privilege does not apply here, simply because [the attorney’s] assigned duties were investigative in nature. The relevant question is not whether [the attorney] was retained to conduct an investigation, but rather, whether this investigation was “related to the rendition of legal services.” If it was, and it clearly was here, then “[t]he privilege is not waived.”
In Connecticut Indem. Co. v. Carrier Haulers, Inc., 197 F.R.D. 564, 572 (W.D.N.C. 2000), the Court held that, because the attorney’s involvement in “any fact finding or investigation was clearly related to his ‘rendition of legal services to’ [the insurer], the attorney client privilege protects confidential communications between [the attorney], the lawyers assisting him, and his staff, and [the insurer], its agents, and its employees”.
The second argument I have faced is that my work product, or perhaps even my opinions, were relied upon in rendering a coverage decision. Now, I acknowledge that where my client (or former client once this happens) decides to assert the defense of “advice of counsel,” attorney-client communication may be subject to discovery. However, that defense is seldom asserted, and probably should be asserted less than it is. In such circumstances, the attorney-client privilege should not be waived, even in a bad faith case. See, e.g., Robertson v. Allstate Insurance Company, 1999 U.S. Dist. LEXIS 2991 at *15-16 (E.D. Pa. 1999).