White Papers

Insurer Litigation Guidelines and Outside Bill Review: What Now?

William T. Barker from the Chicago office of Sonnenshein Nath & Rosenthal prepared this article for an ABA Symposium in 2001. The article points out that standard insurance policies provide that the insurer has "the right and duty to defend" potentially covered claims. Among the tools insurers have used to seek minimization of claim cost have been litigation guidelines and outside bill reviewers. ARTICLE AVAILABLE UPON REQUEST.

Expanding the Tripartite Relationship and Extending Evidentiary Privilege to Fourth Party Legal Audits

John P. Killacky from the University of Illinois wrote a Law Review article that puts forth the premise that the outsourcing of the legal auditing function by insurance companies is commonly referred to as "third-party" legal auditing. However, the auditor is actually a fourth party to the tripartite relationship between insurer, insured, and defense counsel. ARTICLE AVAILABLE UPON REQUEST.

When Should Government Regulate Lawyer-Client Relationships? The Campaign to Prevent Insurers from Managing Defense Costs.

Professor Charles Silver discusses the positive account of insurance carriers' right to insist on guidelines and audits. He also discusses the fact that defense lawyers can adhere to litigation guidelines and submit invoices for review by fee auditors without violating any disciplinary rules, a view that is also shared by other academics. ARTICLE AVAILABLE UPON REQUEST.

Ethical Restrictions on Billing Guidelines and Legal Audits Misplaced

Professor William G. Ross’ article in 14 Notre Dame Journal of Law, Ethics and Public Policy beginning on page 527 provides a thorough analysis of the issues surrounding state bar ethics opinions on the use of insurance company billing guidelines and the use of third-party auditors. He concludes that the restrictions are poorly placed and will not benefit the insured policyholders in the long run. ARTICLE AVAILABLE UPON REQUEST.

Ethics or Economics Explores the Restrictions on Billing Guidelines and Auditors

John S. Pierce and several other attorneys from the San Francisco office of Barger & Wolen presented an article at a recent Mealey’s seminar which reviewed the issues surrounding state bar ethics opinion on the use of insurance company billing guidelines and the use of third-party auditors for a recent Mealey’s seminar. Their findings support elimination of the restrictions on the use of guidelines and third-party auditors. ARTICLE AVAILABLE UPON REQUEST.

Disclosure of Client Documents to a Third-Party Auditor Does Not Waive Privilege

John S. Pierce from the San Francisco office of Barger & Wolen prepared an article in the Journal of Legal Auditing which reviewed the issues of potential waiver of confidentiality and privilege through disclosure of client documents to a third-party auditor. His opinion is that disclosure of client documents to a third-party auditor during the course of a legal audit does not result in a waiver of work product or attorney client privilege. ARTICLE AVAILABLE UPON REQUEST.

Disclosure of Legal Bills to a Third-Party Auditor Not Waiver of Privilege

In the Indian Law Center v. The Hopi Tribe of Indians, 477 F. Supp. 144 (1979), the United States District Court for the District of Columbia held that the use of the Bureau of Indian Affairs to perform an audit of legal bills did not constitute a waiver of attorney client privilege relating to those bills. ARTICLE AVAILABLE UPON REQUEST.

Formal Opinion 01-421, February 16, 2001, Ethical Obligations of a Lawyer Working Under Insurance Company Guidelines and Other Restrictions

Formal Opinion 01-421 discusses if a lawyer may disclose the insured’s confidential information, including detailed work descriptions and legal bills to the insurer if the lawyer reasonably believes that doing so will advance the interests of the insured and also to a third party auditor. ARTICLE AVAILABLE UPON REQUEST.

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