Ethical Quandary for Insurance Defense Counsel

/ 16.May, 2011

The Philadelphia Bar Association publishes ethics opinions nearly every month.  The opinions are “advisory only” by the Professional Guidance Committee, and are not binding upon the Disciplinary Board or Pennsylvania Courts.  They are, however, a good place to look for well considered advice if you have a question on your duties under the Rules of Professional Conduct.

In February of this year, the Committee published an interesting opinion on a question by an insurance defense lawyer (Opinion 2010-9).  The lawyer was faced with a situation where the insurance company proposed to draft nearly all pleadings, motions, and other court submissions.  The lawyer would have the opportunity to review and make changes if necessary, and would then sign the materials and submit them under his own name.  The Committee found that several of the Rules of Professional Conduct would be implicated by this arrangement, including RPC 1.0, RPC 1.3, RPC 1.4, RPC 1.8, RPC 2.3, RPC 5.1, and RPC 5.5.  The Committee advised that while “ministerial work” could be done by a centralized location at an insurance company, any acts which “constitute the practice of law” must be done by the attorney.

Although the conclusion is relatively obvious, the opinion is well reasoned, and is a good refresher on a number of the duties particular to insurance defense attorneys.

Josh J.T. Byrne, Esquire