Retainer Agreement It

					The Tripartite Relationship:
 Is It A Reality Or Just A
   ABA Section of Litigation
Committee on Insurance Coverage
     Tucson, AZ – March 4, 2005

             Steven Brower
    Stephan, Oringher, Richman & Theodora
          Orange County, California
               Program Outline
   Introduction
       Explanation of the issue
       Speaker’s will introduce themselves
   Brief Panel Presentations
   Hypotheticals/Audience Discussion
           Tripartite Relationship
   The insured has a third-party liability
    policy which [potentially] covers a claim
   The insurer selects and pays counsel to
    represent the insured
   Is the client only the insured or is the
    insurer also a client?
       2 Clients + 1 Counsel = Tripartite Relationship
       The issue is not just whether there can be
        privileged communications – the issue is full
        attorney/client relationship
              Panel Participants
   Laura Foggen
       Wiley, Rein & Fielding
   David Gauntlett
       Gauntlett & Associates (Irvine, CA)
   Diane Karpman
       Karpman & Associates (Los Angeles, CA)
            Hypothetical Issue #1
            Retainer Agreements
   Retainer Agreement
       Mandatory with the insurer?
       Mandatory with the insured?
       Single letter with full disclosure of “case
        handling rules”?
       Do you ask the insured to agree to pay in
        case of default of the carrier?
       Do you ask the insured to agree to pay in
        case of coverage being withdrawn?
       Hypothetical Issue #2
    Communications with Client(s)
   Communication with the clients
       Can you ever have a communication which
        isn’t disclosed to both clients?
       Do you send bills to the insured?
           Defense within the limits
       Do you advise the insured that the carrier
        rejected a strategic decision?
       How do you advise the insured that the
        carrier rejected a settlement proposal?
           Carrier insolvency
        Hypothetical Issue #3
    Coverage Advice to the Insured
   Can you exclude coverage advice from
    your representation of the insured?
       Do you advise the insured that there is a
        coverage issue?
       Do you advise the carrier that there is a
        coverage issue?
       Can you exclude the obligation to give
        coverage advice with a written agreement?
           Are those routinely undertaken?
       Hypothetical Issue #4
    When an Actual Conflict Arises
   How do you proceed when an actual
    conflict arises between the clients?
       The insured tells you a “bad fact”
          Do you advise the insured about the problem
           before you advise the carrier?
          Can you continue to represent either of the
          Does your retainer letter explicitly say what
           happens under these circumstances?
                Does it matter?

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