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• W314885071 abstract "DEFENSE ATTORNEYS working within the insurance industry face various ethical dilemmas. This article examines the tripartite relationship, which has existed for more than three quarters of a century and includes a detailed look at such issues as who the attorney represents and what duties he or she owes to specific parties. Additionally, this article discusses potential conflicts of interest within the tripartite relationship, such as insurance carrier litigation guidelines, third-party audits, and defense subject to a reservation of rights. Finally, this article concludes with a brief discussion of the client theory. I. Explanation of the Tripartite Dilemma It is 7:30 a.m. on a Monday morning, and Bob is driving down a crowded freeway during his morning commute. Wondering why the traffic is moving so slowly this morning, Bob begins fidgeting with his radio dial, attempting to tune in a news station. Bob's other hand is firmly attached to his daily cup of steaming hot cappuccino. With one hand on the radio and the other homing his coffee, Bob is forced to steer his vehicle using only his knee. Suddenly, Bob s vehicle hits a bump on the freeway and his cappuccino spills all over him. Momentarily forgetting where he is or what he is doing, Bob's reaction to the hot coffee is to squirm about and writhe in pain. When he does so, his knee slips from the steering wheel and his vehicle careens into another car in the lane beside him. An accident ensues. While Bob is uninjured, the driver of the other vehicle is not so lucky. That driver, an elderly woman, is taken away in an ambulance. Suffering severe whiplash and a deep laceration of the head, the woman's memory is significantly diminished, and she has lost control of some of her motor functions. This scenario could occur in any town across the country. Suppose that Bob is being sued by the woman. According to his insurance policy, his carrier must provide him with a defense. Things now begin to get tricky. The relationship that is created when an insurance carrier (hereinafter insurer) hires a lawyer to represent a policyholder (hereinafter insured) is called the tripartite relationship. (1) This relationship has provided many insurance defense lawyers with serious confusion as to what duties are owed to whom. The tripartite relationship is unique in that it often creates a situation in which the attorney is unsure who he represents. This can create serious questions of loyalty for the attorney. Texas Supreme Court Justices Raul Gonzalez and Gregg Abbott aptly noted: The duty to defend in a liability policy at times makes for an uneasy alliance. The insured wants the best defense possible. The insurance company, always looking at the bottom line, wants to provide a defense at the lowest possible cost. The lawyer the insurer retains to defend the insured is caught in the middle. There is a lot of wisdom in the old proverb: He who pays the piper calls the tune. The lawyer wants to provide a competent defense, yet knows who pays the bills and who is most likely to send new business. This socalled tripartite relationship has been well documented as a source of unending ethical, legal, and economic tension. (2) Debate over this relationship is not new. From the 1940s to the 1960s, Professor Robert E. Keeton brought the issues surrounding the tripartite relationship to the forefront of the scholarly community. During the 1970s and 1980s, however, the subject basically dropped off the radar. In recent years, the announcement of the Restatement (Third) of the Law Governing Lawyers, the political attention directed toward the insurance industry, and the drastic increase in legal malpractice suits derived from insurance disputes have all contributed to a resurrection of the tripartite debate. Who is the Client? One prominent author has noted that the rules surrounding insurance defense litigation fail to provide clear and defensible answers to the most basic questions, such as whether an attorneyclient relationship exists between the insurance company and the lawyer retained to handle the lawsuit against the insured . …" @default.
• W314885071 created "2016-06-24" @default.
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• W314885071 date "2007-04-01" @default.
• W314885071 modified "2023-09-26" @default.
• W314885071 title "Ethical Considerations within the Tripartite Relationship of Insurance Law - Who Is the Real Client?" @default.
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