Historical and Ethical Considerations. H. MICHAEL BAGLEY Drew Eckl & Farnham, LLP 880 West Peachtree Street Atlanta, Georgia 30309

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1 : Historical and Ethical Considerations H. MICHAEL BAGLEY Drew Eckl & Farnham, LLP 880 West Peachtree Street Atlanta, Georgia

2 H. MICHAEL BAGLEY* Chairman of the Board of Drew, Eckl & Farnham, in Atlanta, where he practices in the areas of property insurance and occupational injury. He is the co-author of the Chamber Desk Reference Manual. Mr. Bagley is a member of the Tort and Insurance Practice section of the American Bar association. He is a past Chair of the Workers Compensation Section of the State Bar of Georgia. He has held numerous positions in the Torts and Insurance practice section of the American Bar Association, including Chair of the Property Insurance Committee, past-chair of the Annual Meeting Arrangements Committee, National Programs and the Public Relations Commission. He is the Immediate Past Chair of the Formal Advisory Opinion Board of the State Bar of Georgia and Chair of the Ethics Committee of the Federation of Defense and Corporate Counsel. PROFESSIONAL AFFILIATIONS FDCC (Chair, Ethics Committee, ) American Bar Association (Chair, 1995 Property Insurance Committee of TIPS; Chair, 1991 Annual Meeting Committee; CLE Board ; Co- Chair, National Programs ). Georgia Bar ( Formal Advisory Opinion Board; Chair, Formal Advisory Opinion Board; Committee on Ethical Rules and Procedures; 1998 Chair, Workers' Compensation Committee; Lifetime Fellow of Georgia Bar Foundation; Author's Court). Atlanta Bar Association (1989 Executive Committee of W.C.Section). SAMPLE PUBLICATIONS, LECTURES AND OTHER PROFESSIONAL ACTIVITIES Editor, Annotations to Fire and Extended Coverages, ABA (1994) Editor, Annotations to Bad Faith and Punitive Damages, ABA (1989) Co-Author, Workers' Compensation, Ga Jur, Lawyer's Co-op. (1995) Co-Author, Georgia Workers' Compensation Desk Ref. Manual, Georgia Chamber of Commerce ( 1-5th Eds.) Co-Author, Annual Survey of Law, Mercer Law Review, ( ) Author, Delay As An Element of Business Interruption Loss, The Brief, ABA, August, Co-Author, Insuring Real Property, Matthew Bender Co. (1989) *The writer expresses his sincere appreciation to Karen Karabinos, an associate at Drew Eckl & Farnham, for her invaluable contributions in the preparation of this paper. Page 2 2

3 I. INTRODUCTION The thing which gives us great concern in this case is the impact of the rules for discovery when they affect the lawyerclient relationship...if a lawyer is required to disclose the results of his investigation into the facts, suppose a witness called by the lawyer for his client, in the course of crossexamination makes a statement inconsistent with a former statement made to the lawyer and put into possession of the other side through discovery...may not this lawyer be called to verify the terms of the original statement and thus become a witness against his own client? Hickman v. Taylor, 153 F.2d 212, 219 (App. Div. 3 rd 1945). The opinion of the Circuit Court of Appeals in what would ultimately become the Supreme Court s landmark decision Hickman v. Taylor contained a harbinger of the trouble ahead. The court feared that increasing disclosure of attorney s mental impressions, notes, and conclusions would inexorably lead to the attorney being called to the witness stand, in order to explain, distinguish or corroborate information. This fear of the attorney-witness undergirded the work-product doctrine, but ironically, in bad faith litigation, the concept of the attorney as witness has returned to devour the fabric of the doctrine it helped create. Judicial pronouncements touching on traditional issues as work product and the attorney-client privilege in bad faith litigation have created a hodgepodge of ethical and procedural dilemmas that have fueled a rise in the use of counsel as witness thereby compromising the attorney-client privilege and even the work product doctrine. For example, in recent years, state appellate courts have variously ruled that communications between insurers and their outside coverage counsel are unworthy of protection in any case where the insured alleges bad faith. Boone v. Vanliner Ins. Co., 91Ohio St. 3d 209, 744 N.E.2d 154 (2001). Legal opinions received by an insurer from its outside counsel are at issue if the insurer asserted that it had acted in good faith consistent with its understanding of the law even without expressly asserting an advice of counsel defense to the insured s bad faith claim. State Farm Mutual Automobile Ins. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (2000). Investigative activity by an attorney was not privileged up until the time that the client insurer denied coverage as counsel was, in effect, a claims adjuster up to that point in time. Evans v. United Services Automobile Association, 541 S.E.2d 782 (N.C.App. 2001). The erosion of the Page 3 3

4 attorney-client privilege and work-product doctrine in bad faith litigation has completely altered the cost-benefit analysis, since the prevailing view is that not much is being relinquished in order to assert advice of counsel. In some jurisdictions, attorneys have become strategic and attractive additions to the witness lists in bad faith litigation. It is routine in discovery for a party to request the production of any and all documents, reports, letters, correspondence, notes, and computer files that relate, in any way, to any and all investigations into the incident that is the subject of this litigation. In addition to the common objections that such a request is vague, overbroad and ambiguous, typically there will be an objection that such a request seeks documents that are protected by the work product doctrine and/or by the attorney-client privilege. Courts, however, are overruling these objections where the attorney has actively engaged in pre-litigation investigations and where such investigations relate to an issue or defense in the case. ATTORNEY/CLIENT PRIVILEGE & WORK PRODUCT The attorney-client is the oldest of the common law evidentiary privileges, dating back to the Fifteenth Century. Wigmore on Evidence, Section 2290 at Historically, the privileged was viewed as protecting the bond of trust between attorney and client and for the purpose of encouraging "full and truthful communication between an attorney and his client..." Von Bulow.v. Von Bulow, 828 F.2d 94, 100 (2d Cir. 1987). Accord United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813, 112 S. Ct. 63 (1991). Twenty years ago, most lawyers would have been confident that a letter to a client summarizing and analyzing the investigations of an issue could not ultimately be discovered because of the attorney-client privilege or the work product doctrine. This fundamental reliance upon the attorney-client privilege has been shaken. Courts have recognized that the attorney-client privilege can be implicitly waived when a party puts an attorney-client communication at issue in a case. See Mortgage Guarantee & Title Co. v. Cunha, 745 A.2d 156 (R.I. 2000); Aronson v. Schroeder, 671 A.2d 1023, 1030 (N.H. 1995); Mountain States Tel. & Tel. v. Difede, 780 P.2d 533 (Colo. 1989). The at issue doctrine arises when a party asserts a claim or defense that he intends to prove through privileged materials. NL Industries v. Commercial Union Ins. Co., 144 F.R.D. 225, 232 (D.N.J. 1992). The activities of counsel are "at issue" when the resolution of an issue raised by a party in subsequent litigation "depends on an evaluation of the legal Page 4 4

5 theories, opinions and conclusions of counsel" in prior litigation. Morrow v. Brown, Todd & Heyburn, 957 S.W.2d 722, 725 (KY. 1997). See also Mortgage Guar. & Title Co. v. Cunha, 745 A.2d 156 (R.I. 2000) (whether there had been an implied waiver of the attorney-client privilege turned on whether the actual content of the attorney-client communication has been placed in issue in such a way that the information is actually required for the truthful resolution of the issues raised in the controversy). For the most part, state courts have expressed the need for caution before adopting exceptions to this fundamental privilege. See, e.g. Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 249 Conn. 36, 52, 730 A.2d 51, 60 (1999)( [e]xceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications ). The Arizona Supreme Court was one of the first to articulate a bad faith exception to the protection of opinion work product. In Brown v. Superior Court, 137 Ariz. 327, 670 P.2d 725 (1983), the Arizona Supreme Court held that the opinion work product of an attorney or agent of an insurance carrier is directly at issue when a bad faith claim is made. Relying on previous federal cases which had made an exception to strict protection of opinion work product when the opinion work product was at issue, the Brown court allowed the discovery, stating: [B]ad faith actions against an insurer, like actions by client against attorney, patient against doctor, can only be proved by showing exactly how the company processed the claim, how thoroughly it was considered and why the company took the action it did. The claims file is a unique, contemporaneously prepared history of the company s handling of the claim; in an action such as this the need for the information in the file is not only substantial, but overwhelming. Brown, 670 P.2d at 734. The Brown case illustrated a fundamental problem: if the mere allegation of bad faith can make opinion work product discoverable, then there will be little real protection for an insurance defense attorney s opinion work product or that of the adjusters and claims personnel who worked on a claim, and there would be no claim where bad faith was not alleged. The Brown decision was followed quickly by two additional cases confirming that the rules had changed - - National Farmers Union Page 5 5

6 Insurance Co. v. District Court, 718 P.2d 1044 (Colo. 1984), and Escalante v. Sentry Insurance, 743 P.2d 8832 (Wash. App 1987). Both cases involved bad faith claims against insurers, with the insured trying to gain access to the insurer's claim file that contained communications between the insurer and its attorney. In National Farmers Union v. District Court, the Colorado Supreme Court ordered production of an extensive report letter, holding that the attorney was acting as a "claims adjuster," removing the attorney-client privilege. In Escalante v. Sentry Insurance, the Washington Court of Appeals ordered the trial court to conduct an inspection of the insurer's claim file, to determine whether it revealed prima facie evidence of civil fraud, as shown by the insurer's alleged bad faith. If there were such a showing, the court would apply a civil fraud exception to the attorney-client privilege, and order production of the file, including attorney letters. The Supreme Court recognized in Upjohn Co. v. U.S., 449 U.S. 383 (1981), that corporations rely on lawyers to help them comply with the many laws and regulations under which they function. In Upjohn, for example, the company's general counsel conducted an in-house probe by questionnaires to managers about illegal payments to foreign officials. One basis for the Upjohn court's holding the company's investigative questionnaire privileged was the belief that such probes would not be possible without the privilege. Historically, the sanctity of professional privilege made the notion of deposing an attorney something akin to blasphemy. However, today, such a tactic is almost common place. The flagship case which deals with this issue in depth is Shelton v. American Motors 805 F.2d 1323 (8 th Cir. 1986). This case involved a product liability claim against American Motors corporation due to roll-overs. During discovery, plaintiff noticed and deposed Rita Burns, AMC s in-house counsel responsible for supervising the action. During the deposition, the plaintiff questioned the existence of certain documents, which Ms. Burns refused to answer. Plaintiff then moved for default judgment, and it was granted. AMC appealed to the Eighth Circuit. The eighth circuit articulated a limited list of conditions under which a lawyer s deposition could be taken. The impetus for setting out such guidelines were that attorney depositions lower the standards of the profession, disrupt the adversarial nature of the judicial system, add to the burdens of litigation, detract from the quality of the representation of the client, and have a chilling effect on communications between client and counsel. The Sheldon court set out a three-prong test to determine when it would allow attorney depositions to go forward, placing the burden on Page 6 6

7 the moving party to show: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case. 805 F.2d at Various courts have adopted this test in its entirety. See e.g., American Gas. Col, 160 F.R.D. at 587; Kelling v. Bridgestone/Firestone Inc., 153 F.R.D. 170, 171 (D. Kan. 1994); Eschenberg, 142 F.R.D. at 299; Harriston, 134 F.R.D. at 233; Advance Sys. Inc., 124 F.R.D. at 201; Cole v. Mousavi, 1990 WL at 82 (Del Ct. 1990); McMurry, 833 S.W.2d at 830. Other courts modified the test by requiring that the deposition show only that there are no other practical means of obtaining the information sought. West Peninsular Title Co. v. Palm Beach Cty., 132 F.R.D. 301, 302 (S.D. Fla. 1990); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 86 (M.D.N.C. 1987). For example, a recent Appellate decision in Ohio reviewed the trial courts granting of a motion to compel the deposition of opposing counsel. Rand Smith Co., L.P.A. v. Footbridge Capital, LLC, 2002 Ohio App. LEXIS (2002). The appeals court reversed and remanded, finding that a motion seeking to depose opposing counsel will generally be denied if there is any alternative. Peerless Heater Co. v. Mestek, Inc., 46 Fed. R. Serv. 3d (2000). Moore s Federal Practice, (Matthew Bender & Co., Inc. 1999) (stating that since questions to an attorney may give rise to objections based on work product doctrine and attorney-client privilege, a request to depose opposing counsel is generally viewed with disfavor ). In one case, both parties to bad faith litigation filed motions to compel the deposition of opposing counsel, as well as protective orders against the opposing motion. Slater v. Liberty Mutual Insurance Co., 1999 U.S. Dist. LEXIS 275 (1999). The US District court found that defendant insurer s motion to compel deposition was not warranted because defendant had other means of discovering information. The court rejected the plaintiff s on grounds that bad faith could be ascertained without making defense counsel a witness. A classic example of how substantial involvement by an attorney in the pre-investigation of a case can result in the attorney being called as a witness can be found in the case of State of Connecticut v. Marion, 2000 Conn. Super. LEXIS 77 (Superior Ct Conn. 2000). At issue in that case was the pre litigation larceny investigation of a newly elected sheriff by an assistant state attorney. The attorney helped organize evidence seized Page 7 7

8 from financial institutions, attended strategy sessions with IRS agents and auditors, developed a theory of the case and discussed the theory with detectives, inspectors and other state attorneys, and discussed her involvement with the investigation with her husband, a supervising deputy sheriff. Not only did the Court rule that her substantial involvement in the investigation made it likely that the assistant state attorney would be called to testify, it disqualified the entire state attorneys office from handling the case. The Court held that the State had failed to build a Chinese Wall around the assistant attorney to isolate her from the case so that the rest of the office would not be disqualified. Two areas of the law first party bad faith insurance cases and employment litigation have seen an increase in cases permitting an attorney to be deposed and his documents discovered because the investigation in these areas typically are either an element of a cause of action in the case or a defense to the action. EMPLOYMENT CASES In the employment setting, an employer frequently turns to either its in-house counsel or independent counsel to investigate complaints made by employees because counsel usually has a better grasp of the legal issues involved with complaints. However, in employment cases, an attorney s investigation may be discoverable if the quality, extent, and promptness of the investigation become issues in the case. For example, employment cases involving claims of sexual harassment often involve pre-litigation investigations to assist the employer to determine whether the claims are meritorious. As a result, plaintiff s attorneys seek discovery of those investigations, even when conducted by attorneys. In Wellpoint Health Networks, Inc. v. Superior Court, 59 Cal.App.4th 110 (Cal. App. 1997), before an employee filed a suit for hostile environment sexual harassment, the employer hired an outside law firm to conduct an investigation of the employee s claims. Following suit, the employee sought any and all documents concerning the investigation by the employer s attorney. The California Court of Appeals held that the documents must be produced if the employer intended to assert as a defense that it conducted a prompt, thorough, and reasonable investigation of the employee s complaints. According to the court, such a defense by the employer would operate as an implied waiver of the attorney-client privilege and work product doctrine. Id. at 128. Therefore, in those types of cases, an employer may not use the attorney-client Page 8 8

9 privilege as a shield to protect against the discovery of such attorney-client communications and a sword to rely on an affirmative defense of prompt remedial investigation and action. See e.g., In re Perrigo, 128 F.3d 430 (6 th Cir. 1997); Brownell v. Roadway Package System, 185 F.R.D. 19, (N.D. N.Y. 1999). A year later, the California Court of Appeals clarified when production of an attorney s pre litigation investigation is required in the case of Kaiser Foundation Hospitals v. Superior Court, 66 Cal.App.4th 1217 (Cal. App. 1998). Contrary to the facts in Wellpoint, the employer s in-house human resources specialist in Kaiser performed the investigation, not a hired outside attorney. In addition, in a good faith effort to apparently resolve the discovery dispute, the employer voluntarily produced more than 350 pages of documents, withholding all or portions of only 38 pages of documents on the grounds of attorney client privilege or work product doctrine. The parties stipulated that the production of that portion of the investigative file did not constitute a waiver of the attorneyclient privilege or the work-product doctrine. The First District Court of Appeal held that the employer did not waive the attorney-client privilege or work product doctrine. The court recognized that the investigation notes made by the in-house human resource specialist had been produced and the employer only had withheld production of the communications with its counsel, which the Court protected from discovery. In so holding, it appears that the California courts have drawn a line in the sand concerning when the attorney-client privilege is protected: as long as the attorney is functioning as an attorney, and not simply as an investigation as a non-attorney could do, there is no loss of the attorney-client privilege or the work-product doctrine protection. FIRST PARTY PROPERTY CASES The line for protection in first party bad faith cases has similarly been drawn, particularly when discovery of attorney s investigations and attorney-client communications is sought in cases in which the insurer raises its reliance on the actions of its attorney as an affirmative defense to a claim in the litigation. As previously noted, state courts, for the most part, have expressed the need for caution before adopting exceptions to this fundamental privilege afforded to attorney-client communications. See, e.g. Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 249 Conn. 36, 52, 730 A.2d 51, 60 (1999)( [e]xceptions to the attorney-client privilege Page 9 9

10 should be made only when the reason for disclosure outweighs the potential chilling of essential communications ). Nevertheless, courts have carved out a bad faith exception to the protection ordinarily given to opinion work product and attorney-client communications. See e.g., Brown v. Superior Court, 137 Ariz. 327, 670 P.2d 725 (1983) (Arizona Supreme Court held that the opinion work product of an attorney or agent of an insurance carrier is directly at issue when a bad faith claim is made). In light of this bad faith exception, attorneys representing insurance companies should be wary of prelitigation activities that courts have determined authorize deposing the attorney and producing the attorney s files. Generally, courts conclude that investigations performed by an insurance company s adjusters or investigators are not protected from discovery because a substantial part of the insurance company s business is to investigate claims. See e.g., Hawkins v. District Court, 638 P.2d 1372 (Colo. 1982). Therefore, records containing the investigations are typically held ordinary business records, not documents prepared in anticipation of trial. If an attorney takes on the investigative role of an insurance adjuster or investigator, some courts hold that the investigation of the attorney is not protected by either the work-product doctrine or the attorney-client privilege. For example, in National Farmers Union v. District Court, 718 P.2d 1044 (Colo. 1984), the Colorado Supreme Court ordered production of an extensive memorandum or report letter, holding that the attorney was acting as a "claims adjuster," thus removing the attorney-client privilege. In that case, following a demand for payment under the policy, the insurance company referred the claim to its general corporate counsel who hired an outside law firm to investigate and determine whether the policy covered the claim. The law firm took statements of the insurance company s employees concerning the issuance of the policy at issue. Subsequently, the firm prepared a lengthy memorandum documenting its investigation and its coverage analysis. The Colorado Supreme Court held that the insurance company: may not avail itself of the protective afforded by the work product doctrine simply because it hired attorneys to perform the factual investigation into whether the claim should be paid. The attorneys were performing the same function a claims adjuster would perform, and the resulting report is an ordinary business record of the insurance company. Page 10 10

11 Id. at See also, Munoz v. State Farm Mut. Auto Ins. Co., 968 P.2d 126, 131 (Colo. App. 1998) ( if a lawyer is acting in an investigative capacity, and not as a legal counselor, with reference to whether an insurance claim should be paid, then neither the privileged created by [state] statute nor the work product privilege protects communications from a lawyer to an insurance carrier. Id. at 131.) The Colorado Supreme Court also rejected the argument that the memorandum was protected by the attorney-client privilege. In assessing whether that privilege applied, the Court considered the following four factors enumerated by the United States Supreme Court in Upjohn Co. v. United States, 449 U.S. 383, (1981) to determine whether the attorneyclient privilege afforded protection: (1) The information was provided by corporate employees to counsel acting as counsel for the corporation at the direction of corporate supervisors. (2) The purpose of the communication was to allow counsel to provide legal advice to the corporation. (3) The employees were made aware that they were being questioned by attorneys so the corporation could secure legal advice; and (4) The employees were informed that the communications were highly confidential. Id. at Contrary to these factors, the Colorado court in National Farmers Union found the focus of the lawyer s investigation, as detailed in the memorandum, was merely to obtain the factual circumstances surrounding the issuance of the policy at issue. There was no evidence that the employees questioned were ever told that the attorneys were investigating to allow the company to obtain legal advice or that the investigation was confidential in nature. Based on that analysis, the Colorado Supreme Court permitted discovery of the memorandum, except those portions which contained legal advice. In California, courts apply the dominant purpose test in instances in which it is difficult to determine if the attorney-client privilege (or work product privilege) attaches to a communication. According to that test, if it appears that the communication is to serve a dual purpose, one for transmittal to an attorney 'in the course of professional employment' and one not related to that purpose, the question presented to the trial court is as to which purpose predominates.... (Cit. omitted.)" Travelers Ins. Companies v. Superior Court, 143 Cal.App.3d 436, 452 (1983). Applying this test, the California courts have rejected the application of the attorneyclient privilege where the attorney was acting as a negotiator for the client, Page 11 11

12 was merely gave business advice, or was merely acting as a trustee for the client. Aetna Casualty & Surety Co. v. Superior Court, 153 Cal. App. 3d 467, 475 (1984). In 2022 Ranch, LLC v. The Superior Court of San Diego County, 113 Cal. App. 4th 1377 (Cal. App. 2003), Chicago Title opposed a motion to compel documents by its insured arguing that the information was protected by the attorney-client and attorney work product privileges because its claims handlers were licensed attorneys who were acting as attorney advisors and legal advocates for Chicago Title, not merely as claims adjusters. A vice president of the insurance company testified the claims handlers were employed for the primary purpose of investigating claims and making coverage recommendations under applicable title policies and that they were relied upon for their legal expertise and training, and their ability to interpret title policies, determine coverage, as well as to assess and provide legal advice as to coverage issues." Rejecting the application of the attorney-client privilege and the work product doctrine, the California court ordered production of the documents to the extent that the claims adjusters were performing claims investigations and the information constituted factual matters concerning that investigation. The Court held that the attorneys were working as claims adjusters, not legal advisors. The California court also permitted certain deposition questions to be answered by the claims handlers because some of the questions concerned the insurance company s factual claims investigation, not the rendering of legal advice by the claims handlers. See also, Mission Nat. Ins. Co. v. Lilly, 112 F.R.D. 160, , (D.Minn. 1986) (to the extent that a law firm employed by an insurer acted as a claims adjuster, work product, communications to client, and impressions about facts were to be treated as ordinary business of the insurer; and those sections of documents reflecting mental processes and opinions of counsel which truly bore on anticipated litigation would be redacted as protected); Privilege, Work Product, and Discovery Issues in Bad Faith Litigation, 32 Tort & Ins. L.J. 1, 7 (Fall 1996) (the author observed that "[a] number of courts have viewed the hiring of an attorney to serve the dual role of counsel and claims investigators as an attempt to obstruct discovery into claims handling and investigation. When the communication is divisible into a purely factual, or nonlegal, component and a legal one, courts will generally require disclosure of the factual component." (Fns. omitted.)); The Attorney-Client/Work Product Privileges and Surety Investigative Information: Applying Old Rules to New Tricks, 34 Tort & Ins. L.J. 1009, 1030 (Summer 1999) (the author stated, "Insofar as sureties employ attorneys, whether in-house or as outside counsel, to perform ordinary business functions, no privilege attaches. Thus, the attorney-client privilege does not apply where an attorney is retained Page 12 12

13 primarily to investigate facts, but only where the attorney is rendering legal services and advice.") RELEVANT RULES OF PROFESSIONAL CONDUCT Obviously, if pre-litigation investigation by counsel is to be discovered, questions are ultimately raised about whether or not counsel will be a witness in the underlying matter. Alabama was the first state to discourage the practice by codifying a professional prohibition against advocates testimony on behalf of clients. In Rule 18 of its 1887 Code of Ethics, lawyers were admonished against any such testimony beyond simple formality. Ala. Code x (1887). National codification came in 1908, when the ABA promulgated its Canons of Professional Ethics, Canon 19, drawing from the language of the 1887 Alabama State Bar Association Code. Canon 19 provided in part: When a lawyer is a witness for his client, except as to merely formal matters...he should leave the trial of the case to other counsel. Except when essential [sic] to the ends of justice, a lawyer should avoid testifying in court in behalf of his client. Canons of Prof l Ethics Canon 19 (1908). A. The Model Code The Model Code addresses the advocate-witness rule in two disciplinary rules DR 5-101(B) and DR The former proscribes an attorney from taking a case if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness. This is subject to four exceptions. The latter requires withdrawal by counsel if he later discovers that he ought to be called as a witness. This ought to be called standard, advises that counsel shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness. Model Code of Professional Responsibility, Directory Rule 5-101(B). If counsel accepted employment and then subsequently became aware of the potential for an attorney-witness scenario, counsel shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial. Both prongs of the rule permit counsel to testify about uncontested matters, the value or nature of the legal service, matters not related to substantial evidence. Page 13 13

14 For example, counsel who had represented insured under health insurance policy in connection with insured s action against tortfeasor, which resulted in settlement, and during which insurer had allegedly communicated with counsel regarding insurer s contractual obligations under policy, was likely to be a material witness in insurer s subrogation action against insured, and thus was disqualified from representing insured in that action; affirmative defenses asserted by insured, which had been drafted by counsel, alleged that insurer had failed to give timely notice of its rights, making it hard to imagine that issue could be litigated without counsel as a witness. Code of Prof. Resp., DR Mutual Group U.S. v. Higgins, 259 Neb. 616, 611 N.W.2d 404 (2000). B. ABA Model Rules In 1977, the ABA appointed the Kutak Commission, which produced the ABA Model Rules of Professional Conduct in See Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 5 (4 th ed. 1995). Supplanting the model code, the Model Rules contained substantial changes regarding the ethics of confronting attorneywitnesses. Model Rule 3.7 provides that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. The Model Rule does not expressly exempt cumulative testimony from the disqualification rule. Furthermore, the Model Rule does not bar counsel from accepting employment if there is pending litigation where he or she could be called as a witness. A majority of courts and state bars interpreting this language have allowed attorneys to continue in trial preparation, even if testifying. Although advocate-witness disqualification would preclude will proponent s counsel from acting as trial counsel, this did not require counsel s disqualification at pretrial stage of a will contest. Estate of Giantasio, 173 Misc. 2d 100, 661 N.Y.S.2d 935 (Sur. Ct. 1997). Attorney who is disqualified from representation at trial because he may or will be a witness can continue to participate in the client s case until trial commences; he may continue to assist in pretrial matters such as drafting pleadings, engaging in settlement negotiations, and assisting in trial strategy. State Bar Rules, V.T.C.A., Government Code Title 2 Subtitle G App, Art. 10, s. 9, Rules of Prof. Conduct, Rule In re Bahn, 13 S.W.3d 865 (Tex. App. Fort Worth 2000). In Cartin v. Continental Homes of New Hampshire, 134 Vt 362, 360 A2d 96 (1976), the court stated that if circumstances did not permit an attorney s withdrawal from conduct of the trail, he may testify, although he should not argue his own credibility. the The Model Rules replaced the ought-to-be-called language with lighter necessary witness standard and abandoned imputed Page 14 14

15 disqualification. The Model Rules necessary witness has been embraced by the courts in a way that is less likely to lead to a disqualification of the advocate-witness. Under the Model Rule, the burden on the party moving to disqualify is more difficult, opening multiple avenues for testifying firm members to engage in pre-trial activities and investigations and negotiations, leaving the trial advocate with ethically clean hands to try the case. Model Rule 1.6 was expanded in February The amended rule added two exceptions for reporting fraud and for consulting with outside attorneys to assess malpractice exposure. C. The Restatement (Third) of the Law Governing Lawyers The Restatement (Third) of the Law Governing Lawyers is more restrictive than Rule 3.7. The Restatement allows counsel to remain if the testimony as to fees, or if the lawyer reasonably believes that the testimony will not relate to a contested issue, if a substantial hardship to the client is unavoidable, if the opposing counsel consents, and, if the testimony creates a conflict of interest, the client consents. Finally, the Restatement expressly recommends that the court should not permit a lawyer to call opposing trial counsel as a witness unless there is a compelling need. The comments strongly discourage testifying attorney s continued participation in trials, hearings on motions, preliminary injunctions, and summary judgment, but does not require disqualification where testimony is given in a separate proceeding, or if counsel testifies only for a preliminary motion, or doesn t appear on a list of counsel or physically appear in support of advocacy. D. States Enactments When ethical questions arise in states, state laws authorize state courts to adjudicate and interpret state ethics statutes. Twenty-six states have adopted the language set forth in Model Rule 3.7 (Alabama, Arizona, Connecticut, Delaware, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, Pennsylvania, Rhode island, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming). Nine other jurisdictions have, while remaining true to the spirit of Model Rule 3.7, crafted their own version, slightly altering the original language of the Model Rule 3.7 (Arkansas, District of Columbia, Colorado, Florida, Louisiana, New Mexico, North Carolina, North Dakota, and Washington). Page 15 15

16 Twelve states continue to follow the language set forth in DR & 102 of the ABA Model Code of Professional Responsibility. Georgia held on to the 1908 Canons version of the advocate-witness rule until Roy M. Sobelson, Legal Ethics, 51Mercer L.Rev. 353, 358 (1999) E. Imputed Disqualification Disqualification motions based upon likelihood that a lawyer may be called as witness on behalf of non-client are subjected to strict scrutiny because of the potential for abuse. 5 A.L.R.4th 574 N.Y. McKinney s Judiciary Law App. In re Allboro Waterproofing Corp., 224 B.R. 286, 33 Bankr. Ct. Dec. (CRR) 128 (Bankr. E.D.N.Y. 1998). See also FDIC v. United States Fire Ins. Co., 50 F.3d 1304 (US App. 5 th Dist.).(holding that the disqualification order of the district court was overly expansive and that the profession was not served in this case by disqualification of entire law firm). However, lawyers who would be required to serve as witnesses in proceeding may be excluded, under rules of ethics, from participating in any way in the case. See, In re Dow Corning Corp., 255 B.R. 445 (E.D. Mich. 2000). When disqualification is sought on the grounds that another individual in the representative firm ought to be a witness in the same proceedings, the determination of such motion is not primarily dependent upon rules of procedure, but upon the respective court s views as to the applicability of particular rules of legal ethics. Under the Model Code Rule 5-102(A), or a similar local rule, courts have routinely held that a lawyer s status as a witness for his client or the firm s client warranted the disqualification of another member of the same firm, if not the entire firm. A premier case adopting the Model Code perspective is U.S. ex rel. Sheldon Electric Co. v. Blackhawk heating & Plumbing Co., 423 F. Supp. 486 (1976 SD NY). In a case against an insurance company for its conduct in corporate theft claim, attorney and all members of attorney s firm would be disqualified from representing insured, where the attorneys were likely to be called as witnesses in support of the insurer s affirmative defenses that were based on contact between attorney and employee. Two s co. v. Transamerica Ins. Co. 653 F.Supp. 255 (1986, SD NY). Seven states still have a strict following of the Model Code disqualification rule. 5 A.L.R4th 2. Recently, in 155 North High, Ltd. v. Cincinnati Insurance Co., the Ohio Supreme Court ordered the disqualification of the attorney investigating both the fire insurance claim policy and the handling of the claim by the insurance company. The court reasoned that the attorney was a key witness, but rejected the hardship exception, applying the narrower standard under the Model Code. The court also rejected the arguments for exception on the basis of a long-term Page 16 16

17 relationship and financial hardship. The court held that the trial court abused it s discretion by not disqualifying the attorney-witness. Similarly, it was held that a property insurer s attorney could be involuntarily disqualified from defending the insurer against its insureds suit based on the attorney s involvement in the claims process which gave rise to the suit only if the insureds could show that: (1) no means existed to obtain the information other than to depose the attorney; (2) the information was relevant and non-privileged; and (3) the information was crucial to the preparation of the case. Rumpza v. Donalar Enterprises, Inc., 1998 SD 79, 581 N. W. 2d 517 (S.D. 1998). In some cases, defense counsel has successfully disqualified plaintiff s counsel as potential witnesses. Stewart v. Bank of America, 203 F.R.D. 585 (2001)(A Plaintiffs attorney, who was involved in underlying negotiations with insurance company, was an essential witness in bad faith action and thus should have been disqualified); Forfmann v. Kemper nat. Ins. Co., 258 A.D.2d 508, 685 N.Y.S.2d 282 (2d Dep t 1999). In other cases, courts have denied motions for disqualification from pre-trial proceedings. Davisair Inc. v Butler Air Inc., 40 Pa. D. & C.4th 403 (1998). However, the Federal District Court in Colorado has upheld defendants motions. Miller v. Colorado Farms, 2001 U.S. Dist. LEXIS 7553 (2001). Disqualification is less likely to occur in jurisdictions following the Model Rules. For example, plaintiff s motion to disqualify defendant s attorney, on ground that attorney was likely to be a witness because he was involved in drafting and negotiating agreement which was object of suit, would be denied as premature, where plaintiffs presented no evidence that attorney had knowledge of relevant facts, or any evidence that, if he did, he was the only individual with such knowledge. ABA Rules Prof. Conduct, Rule 3.7(a). Standard Quimica De Venezuela, C.A. v. Central Hispano Intern., Inc., 179 F.R.D. 64 (D.P.R. 1998). In Allstate Ins. Co. v. English, 588 So. 2d 294 (1991, Fla. App. D2), trial court erred in granting plaintiffs motion to disqualify law firm representing insurance company based on insureds allegation that they intended to depose counsel for the insurer to refute allegations contained in letter he wrote to their former attorney the court found that...there was nothing to indicate that insurer s attorney was likely to be necessary witness. In a declaratory judgment action between two insurers regarding payment of costs and attorney s fees incurred in an underlying personal injury action, the court found that the potential that attorneys might have to testify did not disqualify the attorneys from representing one insurer where ethical concerns that justify prohibition would not be present. Regent Ins. Co. v. Insurance Co. of North America, 804 F.Supp (1992 DC Kan). Page 17 17

18 Courts have occasionally intervened where no motion to disqualify was filed and excluded the attorney from further participation in the case. While determining competency to testify, courts have reserved the right to disqualify as a trade off. United States v. Clancy, 276 F.2d 617 (1960 CA7 Ill.). Other courts have conditioned the admissibility of the testimony on withdrawal or disqualification of the attorney providing the testimony. United States v. Fiorillo, 376 F2d 180 (1967 CA2 NY). F. Implied Waiver of the Attorney/ Client Priviledge Under what circumstances, then, will an insurer be found to have impliedly waived the attorney-client privilege? The mere disclosure of the existence of a coverage opinion from counsel does not place the opinion at issue. See Ex parte Great American Surplus Lines Ins. Co., 540 So. 2d 1357, 1359 (Ala. 1989) (insurer s statement to insured that it had referred question to outside coverage counsel and that counsel s legal opinion supported insurer s coverage opinion did not place opinion at issue ); Mitchell v. Superior Court, 37 Cal. 3d 591, 602 (1985). See also, State Farm Fire & Cas.Co. v. Superior Court 206 Cal. App.3d 1428, 1431 (1988) (insurer s disclosure that it had exchanged letters with attorneys to assess legal issues and render legal opinions and advice on the claim did not waive privilege). A different (and disturbingly radical) approach to these issues was proposed last year by the Arizona Supreme Court in State Farm Mut. Ins. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (2000). Lee involved a class-action bad faith case alleging that State Farm erroneously failed to pay certain uninsured/under insured motorist claims between 1988 and The plaintiffs claimed that State Farm s denial of their requests to stack under insured motorist policies when the policy holders had more than one policy covering their several cars violated state law. Arizona law requires antistacking provisions in insurance policies to contain certain language. State Farm s defense was that they reasonably believed that their anti-stacking provision complied with Arizona law at the time, even though the Arizona Supreme Court had subsequently ruled that State Farm s interpretation of the UIM statute was incorrect. See State Farm Mut. Ins. Co. v. Lindsey, 182 Ariz. 329, 897 P.2d 631 (1995). In the course of the lawsuit, the plaintiffs sought to discover communications made between State Farm and their attorneys. The trial court granted the plaintiffs Motion to Compel, finding that, even though State Farm was not advancing the advice of counsel defense, advice of counsel was implied in the defenses they did raise. 13 P.3d at The Court of Appeals reversed the trial court s decision finding that the trial Page 18 18

19 judge misapplied the law and that State Farm s assessment of claims was based on objective assessments of case law, statutes, and policies. Id. The Supreme Court vacated the opinion of the Court of Appeals and held, in a 3-2 decision, that a party waives attorney-client privilege when it asserts a claim or defense, such as its reasonable evaluation of the law, which necessarily includes information received from counsel. 13 P.3d at Writing for the majority, Justice Feldman expressed concern about the unfairness of allowing a defendant to defend a claim of bad faith by arguing that a good faith effort was made to act within the law, implying but not stating that legal advice was obtained and followed, then using attorney-client privilege to preclude the advice from the attorney from being considered. 13 P.3d at The majority used the continuing metaphor that a party is not allowed to use attorney-client privileges both a sword and a shield. Id. The majority found that State Farm s defense included its subjective interpretation of the law. A crucial point for the majority seems to be that State Farm did not deny that it relied on advice from its attorneys in evaluating its compliance with the law. Further, they held that a waiver of attorney-client privilege can be implied when a party injects a matter that, in the context of the case, creates such a need for the opponent to obtain the information allegedly protected by the privilege that it would be unfair to allow that party to assert the privilege. Id. at Expressly rejecting the California view that implied waiver of attorney-client privilege is found only when the party expressly uses the defense of advice of counsel, the majority adopted Restatement (3d) of Law Governing Lawyers 80. Section 80 provides that attorney-client privilege is waived when the client asserts that it acted on the advice of counsel or that the advice was otherwise relevant to the legal significance of the client s conduct. Id. at The majority interprets Section 80 to mean that the client has waived the privilege when any claim or defense is related to information received by counsel. Id. Their rationale is based on the fact that when a client s defense is based on its subjective legal knowledge, it has injected the legal knowledge of its employees into the litigation and put the sources of this legal knowledge at issue. While the majority acknowledged that there is plenty of disagreement among states on this issue, it asserts that Arizona precedent requires the result it reaches. The majority claimed, however, that the waiver of privilege is limited only to those areas specifically relating to counsel s advice on denying the insureds claims at issue in the Page 19 19

20 case. The majority did not believe that their opinion extended to waive privilege any time a litigant consulted with counsel. The majority claimed there is a special factor present in this case, namely that the claims managers investigation into the law relied on information and advice received from lawyers. Id. at The two dissenting justices were both concerned with the farreaching encroachment the majority opinion would have on attorney-client privilege. Justice Martone opined that defendants will not have a fair opportunity to assert subjective reasonableness if doing so abrogates their attorney-client privilege. Id. at Justice Martone agreed with the general rule recognized by the majority that a client waives attorney-client privilege by putting legal assistance or communication in issue. However, he departed from the majority in requiring the privilege holder himself to affirmatively inject an issue that relies upon a privileged communication for waiver to occur by implication. He asserted that the Restatement does not mean that mere defense against an issue raised by the other party waives attorney-client privilege. Justice Martone s position was based on the necessity of the insurer being able to defend against a claim that it acted unreasonably (the objective element) and against a claim that it acted in bad faith (the subjective element). Id. at Since any prudent insurer will consult a lawyer, Justice Martone asserted that the majority opinion requires the insurer either to waive attorney-client privilege or be unable to properly defend a bad faith claim. Justice McGregor agreed with Justice Martone, but wrote separately to emphasize her concern that the majority decision injects too much uncertainty into the reliability of attorney-client privilege. She specifically disagreed with the majority as to how this decision will be applied to other fact patterns. Justice McGregor was concerned that, based on this decision, attorney-client privilege will be inappropriately denied in many situations. Yet, the focus of Justice McGregor s concern was not the debate as to how hypothetical cases might be decided. Rather, she was concerned that the decision makes the scope of attorney-client-privilege uncertain. For the most part, courts have not taken as liberal approach to implying at issue claims from the insurer s responsive pleadings as the Arizona Supreme Court did in Lee. In particular, most courts have refused to find that an insurer s statement in responsive pleadings that it acted reasonably in disputing an insured s coverage claim does not put the underlying legal advice that it received in reaching that conclusion at issue without more. In Clausen v. National Grange Mutual Ins. Co., 730 A.2d 133 (Del. Super. Ct. 1997), a policyholder sought discovery of attorney-client and Page 20 20

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