Board to discuss lawyers who represent policyholders Board to discuss lawyers who represent policyholders A long running ethics debate about the role of lawyers hired by insurance companies to represent policyholders will reach the Bar Board of Governors later this month. The board, at its August 25 meeting in Ft. Lauderdale, will review three proposed advisory opinions from the Professional Ethics Committee dealing with insurance company lawyers, both those on the company payroll and outside counsel. The board will also hear several other committee reports and select nine finalists for three seats on the Florida Board of Bar Examiners. It will be the board’s first meeting of the 2000-01 Bar year. It will be the second time this calendar year the board has considered an insurance-related issue. It earlier approved the recommendation of the Insurance Practices Special Study Committee to create a disclosure form to be given to policyholders when they are sued. The form advises policyholders of their rights and conditions under which the insurance company-provided attorney will work. (The special committee’s report and the disclosure form can be found at the Bar’s website at www.flabar.org/newflabar/organization/committees/scins.html.) While the insurance industry cooperated with the special committee and supported its final report and recommendation, it has opposed the three PAOs drafted by the Professional Ethics Committee. The opinions arose out of concerns that insurance company auditing practices and restrictions on what they would pay threatened client confidences and impinged on the attorney’s duty to provide an adequate defense. The three opinions provide: August 15, 2000 Regular News The board will make several appointments. Those include nine finalists for three seats on the Florida Board of Bar Examiners, with the Supreme Court making the final appointments. The board will also select one lawyer each for four-year terms on the 16th and 19th circuit judicial nomination commissions and select one former public board member for a four-year term on the Supreme Court’s Commission on Professionalism. In PAO 99-2 that, “An attorney hired by an insurance company to represent an insured may not provide confidential information relating to the representation to an outside auditor or other third parties at the request of the insurance company without the specific consent of the insured. Such consent cannot be implied by the contract between the insured and the insurance company.” Russomanno will report on the ABA House of Delegates approval of the recommendation by The Florida Bar and other state bars to reject changes to the model rules to allow MDPs. Insurance industry critics have submitted hundreds of pages of briefs to the board and have requested permission to make oral presentations. Aside from those, the board will also receive a recommendation from its Board Review Committee on Professional Ethics. Criticisms have ranged from the committee improperly considered the opinions since they were not based on an inquiry from an attorney to that it used faulty reasoning, to the opinions unfairly discriminate against attorneys retained by insurance companies. “The PAOs are a remedy in search of a problem,” wrote Tallahassee attorney Katherine Giddings, representing the American Insurance Association. “They neither address specific conduct, nor propose clear, workable solutions. Instead, they are generalized edicts that flout established Florida law, and make it more difficult for attorneys to follow the ethics rules and for insurers to conduct business.” Aside from the insurance issue, the BRCPE will report on an appeal of an ethics staff opinion on whether an attorney can represent a client in a countersuit involving a loan that may have been obtained by fraud and where the loan document may contain misrepresentations. The committee will also present six advertising appeals. The Program Evaluation Committee will report on its reviews, including three programs that are top priorities of Bar President Herman Russomanno for the coming year. Those are a Judicial Independence Commission; a Technology Task Force to help Bar members make better use of new technologies and the Internet; and a commission to study the application of current ethics and bar admission rules to the multi-jurisdictional practice of law. The Legislation Committee will report on Bar legislative positions that should be readopted for the new biennium. Under Bar rules, all legislative positions automatically sunset on June 30 of general election years. The committee will recommend that the board immediately readopt three positions: That the Supreme Court continue to oversee the legal profession, that state agencies be authorized to pay Bar annual fees and CLE costs for their staff attorneys, and that the Bar continue to support switching to merit selection and retention in the choosing of all trial judges. The latter will be the subject of referenda in every circuit and county on the November general election ballot. The board is also scheduled to review materials for the merit retention campaign, including brochures and an educational video. The Member Benefits Committee will present its recommendation that Business Planning Concepts replace Jardine Group Services at the broker/administrator of Bar member benefits insurance programs. On other matters: In PAO 99-3 that, “An attorney is ethically prohibited from entering into an agreement with an insurance company to represent insureds where the attorney’s independent professional judgment and the client’s rights will be affected by restrictive billing practices imposed by the insurance company.” In PAO 99-4 that salaried attorneys or attorneys in firms that derive all or most of their income from an insurance company have a potential conflict of interest and must ensure that their independent judgment to act in the policyholder’s best interest is not impaired. The board also will hear a report from Florida Bar Foundation President Hamilton Cooke.