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 serving two masters: the insurance company that pays the bills, and the insured who stands to lose if the case turns out badly. Not to mention that the sorts of complicated liability cases for which insurers provide coverage often spawn twisted webs of attorney expectations and obligations--particularly ethical ones. And this ethical morass comes with costs: Costs for parties, costs for attorneys, and costs for the public. Much of this cost comes from simple uncertainty; the interested parties are not sure what attorneys should and should not do in navigating the ethical minefield of insurance defense. Perhaps this is a cost we can avoid. In this article we first make a case for why jurisdictions should consider enacting more concrete ethical guidance for lawyers practicing insurance defense. We use a case study to illustrate the pressing need: we take a common insurance-defense ethical situation--conflicts among insurance companies with interests in the same case--and attempt to find ethical answers. What we find is a confusing, often contradictory set of ethical rules. Hopefully convincing our readers that some attention is needed in this field, we finish with a modest proposal for next steps. We do not propose a particular set of ethical rules; instead, we roadmap the most important policy interests and potential issues that should be addressed by state bars or legislatures when crafting better guidance.
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Joseph Regalia & V. A. Cass,
Bringing Counsel in from the Cold: Reconciling Ethical Rules with the Quagmire of Insurance Defense Practice,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol48/iss3/5