Defense lawyers’ ethical dilemma
Insurance defense lawyers have a tough job when the value of a plaintiff’s case exceeds the amount of liability insurance coverage.
The tripartite relationship between insurer, insured and defense counsel is unique in the legal profession, variously described as “deeply and unavoidably vexing” and presenting an ethical dilemma that would “tax Socrates.” See Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured?, 72 Tex. L. Rev. 1583, 1587 (1994); Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 273 (Miss. 1988). The insurance defense lawyer serves two masters – the insurer that hires him and controls the defense, and upon whose continuing good will he may depend for future business, and the insured client who did not choose him, will not pay him, and may never be in the position to refer him future business. This presents inevitable ethical conflicts. Nancy J. Moore, The Ethical Duties of Insurance Defense Lawyers: Are Special Solutions Required?, 4 Conn. Ins. L. J. 259 (1997-1998).
Generally, in the “tripartite relationship” of insurer, insured and defense attorney, insurance defense counsel may not subordinate the interest of either insurer or insured to the other. If their interests come into conflict, defense counsel cannot ethically continue to represent either without making disclosure to both and refraining from taking sides with either against the other. If there is a coverage dispute between the insurer and insured, defense counsel must not take either side. See generally, Restatement (Third) of the Law Governing Lawyers § 215 (2000); Susan Randall, Managed Litigation and the Professional Obligations of Insurance Defense Lawyers, 51 Syracuse L. Rev. 1 (2001); Thomas D. Morgan, Whose Lawyer Are You Anyway?, 23 Wm. Mitchell L.Rev. 11 (1997); Douglas R. Richmond, Lost in the Eternal Triangle of Insurance Defense Ethics, 9 Geo. J. Legal Ethics 475 (1996); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L. J. 255 (1995); J. Kevin Owens, Wrestling with the Tar Baby: Ethical Obligations of Mississippi Insurance Defense Lawyers, 17 Miss. C. L. Rev. 359 (1997); Leo J. Jordan & Hilde E. Kahn, Ethical Issues Relating to Staff Counsel Representation of Insureds, 30 Tort & Ins. L. J. 25 (1994); Robert E. O’Malley, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 Tul. L. Rev. 511 (1991).
Rule of Professional Conduct 1.2(4) provides that “[w]hen a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters covered by the insurance policy.” However, the terms of an insurance policy may not limit the obligations owed by insurance company lawyers to insured clients, including the duty to inform the insured defendant of settlement offers and of the opportunity to settle within policy limits. See, e.g., Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255 (Miss. 1988).
The insurance company owes the insured a duty to use ordinary care and good faith in handling a claim against its insured. See Smoot v. State Farm Mutual Automobile Insurance Co., 299 F.2d 525, 533 (5th Cir. 1962). As Clarendon is well aware, it has a duty to give "at least equal consideration to the interests of the insured" and the "same faithful consideration it gives its own interest." Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991); Jones v. Southern Home Insurance Company, 135 Ga. App. 385, 217 S.E.2d 620 (1975); Great American Insurance Company v. Exum, 123, Ga. App. 515, 181 S.E.2d 704 (1971). Even a negligent failure to compromise a claim may give rise to tort liability to the insured. Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536 (11th Cir. 1991); Home Insurance Co. v. North River Insurance Co., 192 Ga. App. 551, 385 S.E.2d 736 (1989). Failure to comply with a reasonable time limit for such settlement may also give rise to liability of a liability insurer for the full amount of a jury verdict in the underlying case. Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991). Here the only time limit was the return of the jury’s verdict. See also, Kingsley v. State Farm Mut. Auto. Ins. Co., 353 F.Supp.2d 1242 (N.D.Ga. 2005); Ogle v. Nationwide Ins. Co. of America, 2006 WL 418148, *3+ (N.D.Ga. Feb 21, 2006) (NO. 1:04 CV 2802 GET).
Where the insurance company has refused to take advantage of opportunities to settle a claim within policy limits, the plaintiff wins a judgment for some multiple of the policy limits, and the insured is on the hook for the excess, the insurance defense lawyer should exercise great caution. If the plaintiff’s attorney asks for contact information to communicate directly with the insured defendant’s corporate or coverage counsel regarding the insured’s interests vis-a-vis the insurance company, the insurance defense lawyer should either facilitate that communication or report a potential malpractice claim to his own legal malpractice insurance company.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.