UPDATE ON CUMIS COUNSEL: THE FLORIDA AND SELECTED OTHER PERSPECTIVES. FDCC Winter Conference February 2005 Marco Island, FL

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1 UPDATE ON CUMIS COUNSEL: THE FLORIDA AND SELECTED OTHER PERSPECTIVES FDCC Winter Conference February 2005 Marco Island, FL D. David Keller Michael A. Krueger Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. Suite 900 One Financial Plaza Fort Lauderdale, FL fax

2 Generally, insurers acting under a general liability insurance policy retain control over litigation instigated against their insureds when there is a duty to defend those insureds. However, there are situations that arise where a conflict of interest or an apparent conflict of interest arises, which triggers, at least in some jurisdictions, the requirement to provide independent or so-called Cumis Counsel, named for a case in California that first laid out the requirement. See San Diego Navy Fed. Credit Union v. Cumis Ins. Soc y, Inc., 208 Cal. Rptr. 494 (1984). (That right to independent counsel in California has since been codified. Cal. Civ. Code 2860.) There are several situations that could call for the appointment of independent counsel: (1) there are several defendants with antagonistic interests, (2) the allegations in the claim contain causes of actions that are both covered and uncovered, (3) the complaint seeks damages in excess of the policy limits, (4) the insured alleges misconduct by the insurer in managing the defense, and (5) the insurer settled the case without the permission of the insured and conflict arises because of the settlement. Todd R. Smyth, Duty of Insurer to Pay for Independent Counsel When Conflict of Interest Exists Between Insured and Insurer, 50 A.L.R.4th 932 (2004). Of course, there can be other situations where conflict arises; these are only common situations. This outline will initially focus on independent counsel as it is required in Florida, focusing primarily on a recent decision from the United States District Court for the Middle District of Florida, and then provide a brief synopsis of the laws of other jurisdictions as it applies to independent counsel. I. FLORIDA A. STATUTORY AUTHORITY Independent counsel is required in certain circumstances by section , Florida Statutes, which provides:

3 (1) Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder: (a) Acknowledgment of the receipt of notice of loss or claim under the policy. (b) Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss, or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted. (c) Investigating any loss or claim under any policy or engaging in negotiations looking toward a possible settlement of any such loss or claim. (2) A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless: (a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named insured by registered or certified mail sent to the last known address of the insured or by hand delivery; and (b) Within 60 days of compliance with paragraph (a) or receipt of a summons and complaint naming the insured as a defendant, whichever is later, but in no case later than 30 days before trial, the insurer: 1. Gives written notice to the named insured by registered or certified mail of its refusal to defend the insured; 2. Obtains from the insured a nonwaiver agreement following full disclosure of the specific facts and policy provisions upon which the coverage defense is asserted and the duties, obligations, and liabilities of the insurer during and following the pendency of the subject litigation; or 3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court.

4 B. APPLICATION OF THE STATUTE A recent decision by United States District Court of the Middle District of Florida has provided a synopsis of how the Florida Claims Administration Statute is applied:

5 It is well recognized in Florida that where an insurer wrongfully refuses to provide any defense at all, the insurer is liable for the reasonable attorney s fees and other expenses incurred in defending the action as damages for the breach. See, e.g., Fla. Ins. Guar. Ass n, Inc. v. All the Way with Bill Vernay, Inc., 864 So. 2d 1126, 1129 (Fla. 2d DCA 2003). It is also well settled that an insurer does not breach its duty to defend by offering to defend only under a reservation of rights. See, e.g., Giffen Roofing Co. v. DHS Developers, Inc., 442 So. 2d 396, (Fla. 5th DCA 1983). However, when an insurer offers to defend under a reservation of rights, Florida law provides that the insured may, at its election, reject the defense and retain its own attorneys without jeopardizing its right to seek indemnification from the insurer for liability. Taylor v. Safeco Ins. Co., 361 So. 2d 743, (Fla. 1st DCA 1978). One Florida court, however, has held that an insured was entitled to reimbursement of fees and costs was well as other damages without first rejecting the insurer's offer to defend under a reservation of rights. Nationwide Mut. Fire Ins. Co. v. Beville, 825 So. 2d 999 (Fla. 4th DCA 2002). Travelers Indem. Co. of Ill. v. Royal Oak Enters., Inc., Case No. 5:02-cv-58-Oc-10GRJ, 2004 U.S. Dist. LEXIS 23353, at *31 (M.D. Fla. October 13, 2004). Of note, when independent counsel is appointed by an insurer, the insured must be informed of the right have mutually agreeable counsel. Am. Empire Surplus Lines Ins. Co. v. Gold Coast Elevator, Inc., 701 So. 2d 904, 906 (Fla. 4th DCA 1997), rev. denied, 717 So. 2d 527 (Fla. 1998). Additionally, whether an attorney actually acted as independent counsel under the statute is a mixed question of law and fact. State Farm Mut. Auto. Ins. Co. v. Brown, 767 F. Supp. 1151, (S.D. Fla. 1991). 1. Limitations of Sanctions Under the Statute a. Coverage defenses defined The Court in Royal Oak explains the statutory limitations: That statute is concerned only with coverage defenses, which, as defined by the Florida Supreme Court, consist of defenses to coverage that otherwise exists. Royal Oak, 2004 U.S. Dist. LEXIS 23353, at *34 (citing AIU Ins. Co. v. Block Marina Inv., Inc., 544 So. 2d 998, 1000 (Fla. 1989)). b. Violation Results in Preclusion of Defenses not Attorney s Fees A violation of the Claims Administration Statute does not result in the ability to recover attorney s fees, as the Court explains in Royal Oak, Second, the penalty for a violation of the Claims Administration Statute is not an award of attorney s fees and costs... but the preclusion of coverage defenses. Id. at *34 (citing Fans & Stoves of Jacksonville, Inc. v. Aetna Cas. & Sur. Co., 549 So. 2d 1178 (Fla. 1st DCA 1989)). The Court goes on the explain that no Florida case stands for the proposition that an insured may recover attorney's fees and costs after rejecting a defense under a reservation of rights. Id. at *34 (citing Am. Home Assur. Co. v.

6 Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1240 (11th Cir. 1985), which applied similar Alabama law and held that an insured is not entitled to reimbursement of fees and costs of independent counsel where it rejects the defense offered under a reservation of rights). 2. Independent Counsel due to Conflict of Interest (similar to Cumis) is differentiated In certain circumstances, there may be a conflict of interest between insured and insurer that falls outside the scope of the Claims Administration Statute. The Court points out in Royal Oak, Whether a conflict of interest between the insurer and its insured entitles the insured to select counsel of its choice to supplement or monitor the defense at the expense of the insurer is apparently an issue of first impression for Florida courts. Id. at * Royal Oak Concludes No Independent Counsel Required in Florida The Court in Royal Oak came to the conclusion that aside from the requirement of independent counsel under the Claims Administration Statute, no other situation requires independent counsel in Florida. The Court explained:

7 A prudent insured would employ some degree of caution when its interests become adverse to those of its insurer, and accordingly, Royal Oak was entirely within its rights to retain counsel at its own expense. But the question to be resolved by this Court is whether Florida law requires an insurer to pay for this counsel; it does not. The Court is unwilling to indulge the conclusive presumption that counsel is unable to fully represent its client, the insured, without consciously or unconsciously compromising the insured s interests. Accordingly, Royal Oak's counterclaim for reasonable fees and costs of independently retained counsel must fail.

8 Id. at *50. II. CONFLICT OF INTEREST IN OTHER JURISDICTIONS A. WHERE A CONFLICT OF INTEREST REQUIRES INDEPENDENT COUNSEL In drawing the conclusion, the Court in Royal Oak turned to the law of other jurisdictions for instruction. Several other jurisdictions have considered the issue and reached divergent views. It appears that many courts recognize that a conflict of interest, sufficient to warrant the insured s retention of its own counsel at the expense of the insurer, arises where the insurer is called upon to defend an action against its insured seeking punitive damages or alleging mutually exclusive theories of liability, only one of which, but not all, present a covered claim. Id. at *39-40 (citing Fireman s Fund Ins. Co. v. Waste Mgmt. of Wis. Inc., 777 F.2d 366 (7th Cir. 1985) (applying Wisconsin law); Previews, Inc. v. Cal. Union Ins. Co., 640 F.2d 1026 (9th Cir. 1981) (applying California law); United States Fid. & Guar. Co. v. Louis A. Roser, Inc., 585 F.2d 932 (8th Cir. 1978) (applying the law of Utah and Minnesota); Nowacki v. Federated Realty Group, Inc., 36 F. Supp. 2d 1099 (E.D. Wis. 1999); Union Ins. Co. v. Knife Co., 902 F. Supp. 877 (W.D. Ark. 1995); CHI of Alaska, Inc. v. Employers Reinsurance Corp., 844 P.2d 1113 (Alaska 1993); San Diego Navy Fed. Credit Union v. Cumis Ins. Soc y, Inc., 162 Cal. App. 3d 358, 208 Cal. Rptr. 494 (Cal. Ct. App. 1984) superceded by statute as stated in Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. App. 4th 999, 71 Cal. Rptr. 2d 882 (Cal. Ct. App. 1998); Nandorf, Inc. v. CNA Ins. Cos., 134 Ill. App. 3d 134, 479 N.E.2d 988, 88 Ill. Dec. 968 (III. App. Ct. 1985); Moeller v. Am. Guar. & Liab. Ins. Co., 707 So. 2d 1062 (Miss. 1996); Nisson v. Am. Home Assur. Co., 1996 OK CIV APP 40, 917 P.2d 488 (Okla. Ct. App. 1996); Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 425 N.E.2d 810, 442 N.Y.S.2d 422 (N.Y. 1981)). 1. Situations Requiring Independent Counsel The Court in Royal Oak briefly examined situations where independent counsel was required, The most common instance of such a conflict is where, as is the case here, the third party s complaint alleges that the insured s conduct was either negligent or, alternatively, intentional; the former being covered and the latter potentially excluded by the standard intentional tort exclusion. Id. at * The Rationale for Independent Counsel a. Subconscious Inclinations The logic for independent counsel was explained by the Court by citing to another case:

9 The Eighth Circuit Court of Appeal in United States Fidelity & Guaranty Co. v. Louis A. Roser, Co. described the nature of this conflict: Common logic dictates that in such circumstances, counsel for [the insurer] would be inclined, albeit acting in good faith, to bend his efforts, however unconsciously, toward establishing that any recovery by [the third party] would be grounded on the theory of [the] claim which was not covered by the policy.

10 Id. at *39-40 (quoting Roser, 585 F.2d 932, 938 (8th Cir. 1979)). The Royal Oak court further explained:

11 The Eighth Circuit continued in a footnote: In addition, we stress that the record does not indicate and [the insured] does not argue that [the insurer's] attorney acted improperly. However, we cannot escape the conclusion that it is impossible for one attorney to adequately and fairly represent two parties in litigation in the face of the real conflict of interest which existed here. Even the most optimistic view of human nature requires us to realize that an attorney employed by an insurance company will slant his efforts, perhaps unconsciously, in the interests of his real client the one who is paying his fee and from whom he hopes to receive future business the insurance company.

12 Id. at *41 (quoting Roser, 585 F.2d at 938n.5)). The Royal Oak court finally concludes, [S]ome courts have held that the fact that the coverage dispute is not being litigated in the same action by the same attorney does not detract from the force of these opposing interests as they operate on the attorney selected by the insurer.... Id. at *41-42 (quoting Cumis Ins. Soc y, Inc., 162 Cal. App. 3d at 364)). b. Divided Loyalty A second rational explored by the Royal Oak court is that [t]hese courts generally hold that the conflict of interest inherent in an insurer s defense of a complaint against its insured containing both covered and non-covered claims divides the loyalty of counsel selected and paid by the insurer and creates an unacceptable danger that, as counsel for the insured, he would somehow, consciously or unconsciously, skew his defense efforts to favor the insurer. In these jurisdictions, counsel s divided loyalty entitles the insured to select independent counsel of its own choice at the expense of the insurer. Id. at *42. B. WHERE A CONFLICT OF INTEREST DOES NOT REQUIRE INDEPENDENT COUNSEL The Royal Oak court, though, also engages in a thorough examination from the opposite perspective, and suggested, Other courts, however, reject the contention that where a conflict of interest exists between an insurer and its insured, the insured is always free to select its own counsel at the expense of the insurer. Id. at *43-44 (citing Trinity Universal Ins. Co. v. Stevens Forestry Serv. Inc., 335 F.3d 353 (5th Cir. 2003) (applying Louisiana law); Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co. of S.C., LP, 336 F. Supp. 2d 610, 2004 WL (D.S.C. 2004); Cent. Mich. Bd. of Trs. v. Employers Reinsurance Corp., 117 F. Supp. 2d 627 (E.D. Mich. 2000); Driggs Corp. v. Pa. Mfrs Ass n Ins. Co., 3 F. Supp. 2d 657 (D. Md. 1998); Fed. Ins. Co. v. X-Rite, Inc., 748 F. Supp (W.D. Mich. 1990); Cardin v. Pacific Employers Ins. Co., 745 F. Supp. 330 (D. Md. 1990); L&S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala. 1987); Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. App. 4th 999, 71 Cal. Rptr. 2d 882 (Cal. Ct. App. 1998); Finley v. Home Ins. Co., 90 Haw. 25, 975 P.2d 1145 (Hawai i 1998); Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 715 P.2d 1133 (Wash. 1986) (en banc)). 1. Those Courts rely on Codes of Ethics and Self-Policing The Royal Oak court articulated the primary rational behind other courts rejecting the requirement of independent counsel.

13 These courts generally subscribe to the view that the mere fact that defense counsel was assigned by the insurer is, by itself, insufficient... to establish a lack of independence. Cent. Mich. Bd. of Trs., 117 F. Supp. 2d at 636. For these courts, the primary duty of loyalty owed by appointed counsel is to the insured, not the insurer, and to suggest that human nature prevents the harnessing of action motivated by self-interest is to contend that fiduciary relationships are unworkable. Id. Further, although an attorney is selected by an insurance company, the fees charged are paid by the insurance company as a benefit for which the insured has contracted, not because there is a duty of allegiance by the attorney to the insurer which eclipses the duty to the insured. Id. In these jurisdictions, the rules of attorney conduct coupled with the threat of malpractice liability provide sufficient assurance that appointed counsel will not continue to represent the insured where a conflict of interest interferes with counsel's ability to adhere to professional standards.

14 Id. at * The Royal Oak court drew upon a Michigan court case for its argument:

15 As the District Court for the Western District of Michigan reasoned: As long as this standard is observed, the court may not interfere with the terms of the parties agreement. To hold that the insurer who, under a reservation of rights, participates in selection of counsel, automatically breaches its duty of good faith is to indulge the conclusive presumption that counsel is unable to fully represent its client, the insured, without consciously or unconsciously compromising the insured's interests. The Court is unable to conclude that Michigan law professes so little confidence in the integrity of the bar of this state.

16 Id. at *44 (quoting X-Rite, Inc., 748 F. Supp. at 1229). 2. The Policy Underlying the Decision Not to Require Independent Counsel: A Contractual Right to Control Litigation Expenses and Costs The Royal Oak court then went on to examine the underlying policy rational for not providing independent counsel:

17 Not only did Travelers have the duty to defend Royal Oak against the Tilton action, but it also had the right to defend. The right to control the defense is a valuable one in that it reserves to the insurer the right to protect itself against unwarranted liability claims and is essential in protecting its financial interest in the outcome of litigation. CHI of Alaska, Inc., 844 P.2d at 1122 (Moore, J. dissenting in part) (quoting 7C John A. Appleman, Insurance Law and Practice 4681 (Walter F. Berdal ed., rev. ed. 1979). This meaningful contractual right should not be penalized merely because there exists the potential for insurer-selected counsel to become impermissibly conflicted in its representation.

18 Id. at * Creation of a Presumption Finally, the Court concluded that no presumption for a conflict of interest that would give rise to a necessity for independent counsel should be found. To so hold would require this Court to recognize a conclusive presumption, based on nothing more than the existence of a potential conflict between the insured and the insurer, that counsel is unable to provide independent representation. The Court is not willing to graft such an unwarranted presumption into the law. Instead, there must be some evidence to suggest that the conflict between the insurer and the insured actually affected counsel's representation so that it may be said that counsel s actions elevated the interests of the insurer over those of his client, the insured. Id. at III. CODE OF ETHICS A. SERVING AS A CHECK ON FLORIDA ATTORNEYS Last, as a rationale for not providing independent counsel, the Royal Oak court relied on the code of ethics for attorneys. The Court is convinced that the rules governing the Florida bar and the attendant threat of malpractice liability provide sufficient assurance that counsel appointed by an insurer would not continue to represent an insured in the event that a conflict of interest interfered with counsel's ability to make independent professional judgments on behalf of his client. Members of the Florida bar are charged with the responsibility of properly determining whether an actual conflict of interest exists, and if so, whether withdrawal from the representation is required. If counsel fails to do so and violates his or her duty of loyalty, he or she may face disciplinary actions and malpractice liability. Id. at (citation omitted). B. CURRENT BAR RULES The primary rule that requires attorney self policing is Rule 4-1.7: RULE CONFLICT OF INTEREST; GENERAL RULE (a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and (2) each client consents after consultation. (b) Duty to Avoid Limitation on Independent Professional Judgment. A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest, unless:

19 (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. (c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. (d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship. (e) Representation of insureds. Upon undertaking the representation of an insured client at the expense of the insurer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation.

20 In the Comment after the rule, the Florida bar makes it clear that an attorney is to make it clear who she or he represents: Representation of Insureds The unique tripartite relationship of insured, insurer, and lawyer can lead to ambiguity as to whom a lawyer represents. In a particular case, the lawyer may represent only the insured, with the insurer having the status of a non-client third party payor of the lawyer s fees. Alternatively, the lawyer may represent both as dual clients, in the absence of a disqualifying conflict of interest, upon compliance with applicable rules. Establishing clarity as to the role of the lawyer at the inception of the representation avoids misunderstanding that may ethically compromise the lawyer. This is a general duty of every lawyer undertaking representation of a client, which is made specific in this context due to the desire to minimize confusion and inconsistent expectations that may arise.

21 A second, complimentary provision is found in Rule 4-1.8(f). RULE CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS (f) Compensation by Third Party. A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule

22 The Florida Bar Association and the Board of Governors of the Florida Bar had long been proponents of providing insureds with additional information and protection, desiring to push to the forefront nationally of protection for insured clients, and in 2000, proposed a statement of insured client s rights, which defense attorneys would have to disclose to policy holders before an attorney could defend a case. In 2002, the Florida Supreme Court, Amendments to the Rules Regulating the Florida Bar, 820 So. 2d 210, (Fla. 2002), because of its concern for potential ethical risks and to ensure that clients were representing the interests of the insured and not the insurer, adopted the recommendation and incorporated the suggestion into the Florida Bar Rules, and that change is reflected in Rule 4-1.8(j):

23 (j) Representation of Insureds. When a lawyer undertakes the defense of an insured other than a governmental entity, at the expense of an insurance company, in regard to an action or claim for personal injury or for property damages, or for death or loss of services resulting from personal injuries based upon tortious conduct, including product liability claims, the Statement of Insured Client s Rights shall be provided to the insured at the commencement of the representation. The lawyer shall sign the statement certifying the date on which the statement was provided to the insured. The lawyer shall keep a copy of the signed statement in the client s file and shall retain a copy of the signed statement for 6 years after the representation is completed. The statement shall be available for inspection at reasonable times by the insured, or by the appropriate disciplinary agency. Nothing in the Statement of Insured Client s Rights shall be deemed to augment or detract from any substantive or ethical duty of a lawyer or affect the extradisciplinary consequences of violating an existing substantive legal or ethical duty; nor shall any matter set forth in the Statement of Insured Client s Rights give rise to an independent cause of action or create any presumption that an existing legal or ethical duty has been breached. STATEMENT OF INSURED CLIENT S RIGHTS An insurance company has selected a lawyer to defend a lawsuit or claim against you. This Statement of Insured Client s Rights is being given to you to assure that you are aware of your rights regarding your legal representation. This disclosure statement highlights many, but not all, of your rights when your legal representation is being provided by the insurance company. 1. Your Lawyer. If you have questions concerning the selection of the lawyer by the insurance company, you should discuss the matter with the insurance company and the lawyer. As a client, you have the right to know about the lawyer s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer s actual experience dealing with cases similar to yours and give you this information in writing, if you request it. Your lawyer is responsible for keeping you reasonably informed regarding the case and promptly complying with your reasonable requests for information. You are entitled to be informed of the final disposition of your case within a reasonable time. 2. Fees and Costs. Usually the insurance company pays all of the fees and costs of defending the claim. If you are responsible for directly paying the lawyer for any fees or costs, your lawyer must promptly inform you of that. 3. Directing the Lawyer. If your policy, like most insurance policies, provides for the insurance company to control the defense of the lawsuit, the lawyer will be taking instructions from the insurance company. Under such policies, the lawyer cannot act solely on your instructions, and at the same time, cannot act contrary to your interests. Your preferences should be communicated to the lawyer. 4. Litigation Guidelines. Many insurance companies establish guidelines governing how lawyers are to proceed in defending a claim. Sometimes those guidelines affect the range of actions the lawyer can take and may require authorization of the insurance company before

24 certain actions are undertaken. You are entitled to know the guidelines affecting the extent and level of legal services being provided to you. Upon request, the lawyer or the insurance company should either explain the guidelines to you or provide you with a copy. If the lawyer is denied authorization to provide a service or undertake an action the lawyer believes necessary to your defense, you are entitled to be informed that the insurance company has declined authorization for the service or action. 5. Confidentiality. Lawyers have a general duty to keep secret the confidential information a client provides, subject to limited exceptions. However, the lawyer chosen to represent you also may have a duty to share with the insurance company information relating to the defense or settlement of the claim. If the lawyer learns of information indicating that the insurance company is not obligated under the policy to cover the claim or provide a defense, the lawyer s duty is to maintain that information in confidence. If the lawyer cannot do so, the lawyer may be required to withdraw from the representation without disclosing to the insurance company the nature of the conflict of interest which has arisen. Whenever a waiver of the lawyer-client confidentiality privilege is needed, your lawyer has a duty to consult with you and obtain your informed consent. Some insurance companies retain auditing companies to review the billings and files of the lawyers they hire to represent policyholders. If the lawyer believes a bill review or other action releases information in a manner that is contrary to your interests, the lawyer should advise you regarding the matter. 6. Conflicts of Interest. Most insurance policies state that the insurance company will provide a lawyer to represent your interests as well as those of the insurance company. The lawyer is responsible for identifying conflicts of interest and advising you of them. If at any time you believe the lawyer provided by the insurance company cannot fairly represent you because of conflicts of interest between you and the company (such as whether there is insurance coverage for the claim against you), you should discuss this with the lawyer and explain why you believe there is a conflict. If an actual conflict of interest arises that cannot be resolved, the insurance company may be required to provide you with another lawyer. 7. Settlement. Many policies state that the insurance company alone may make a final decision regarding settlement of a claim, but under some policies your agreement is required. If you want to object to or encourage a settlement within policy limits, you should discuss your concerns with your lawyer to learn your rights and possible consequences. No settlement of the case requiring you to pay money in excess of your policy limits can be reached without your agreement, following full disclosure. 8. Your Risk. If you lose the case, there might be a judgment entered against you for more than the amount of your insurance, and you might have to pay it. Your lawyer has a duty to advise you about this risk and other reasonably foreseeable adverse results. 9. Hiring Your Own Lawyer. The lawyer provided by the insurance company is representing you only to defend the lawsuit. If you desire to pursue a claim against the other side, or desire legal services not directly related to the defense of the lawsuit against you, you will need to make your own arrangements with this or another lawyer. You also may hire another lawyer, at your own expense, to monitor the defense being provided by the insurance company. If there is a

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