Should I Talk to You? Beware of Attorney-Client Privilege Pitfalls in Workers’ Comp Litigation
Even someone with a casual understanding of the law can grasp the concept of attorney-client privilege. If a client tells an attorney something privately, it can’t be used against them later. If an attorney talks strategy with their client, it stays confidential.
Things get tricky as cases get more complicated. Litigation involving insurance companies have lots of stakeholders like the broker, carrier, client and defense attorney. A relative newcomer to that group is the claims advocate, helping companies maximize coverage and move claims toward resolutions.
With so many parties, information can flow in all directions. If confidential information is shared with someone outside of the attorney-client privilege — perhaps in a long-forgotten portion of an email chain — a plaintiff’s attorney can obtain it.
Pat Eckler, partner at Pretzel & Stouffer, Chartered, frames the risk in terms of military intelligence. If a general was going into battle, they’d love to know the amount of enemy troops, where they’re located, and what weapons they have. It’s akin to a plaintiff’s attorney obtaining a defense attorney’s analysis of a case.
“It would give an unbelievable advantage to the other side to have that information. If an experienced, savvy, and aggressive plaintiff’s counsel finds out there is information shared with a broker or someone outside the privilege, there’s a subpoena coming in all likelihood,” he said.
Eckler shared his thoughts during a session of the 2020 CLM Workers’ Compensation and Retail, Restaurant & Hospitality Conference. In the era of COVID-19, the session was conducted via video chat.
The Risks of Missharing Information
Bruce Bollman, regional workers’ compensation superintendent at Cincinnati Insurance Company, said that all stakeholders in litigation tend to “jump off the cliff together” if information is misshared.
“We all need to be very careful about what we’re sharing and who we’re sharing it with,” said Bollman, “especially email chains that tend to go on and on ad nauseum.”
Unsurprisingly, things can get competitive as each stakeholder looks out for their best interest.
“It can get a little adversarial from time to time but in the end, we really want a good resolution to that claim,” said Bollman.
Good Communication Is Key
Protecting attorney-client privilege takes good communication, said Eckler.
“You’ve got to tell the client, don’t forward my emails to the claims advocate. I had a situation recently when it was done by an in-house lawyer at a publicly traded company. I had to say ‘you can’t do that,’ ” he said.
Whitney Ross, claims manager at Willis Towers Watson, works as a claims advocate.
Almost immediately, she tells clients that communications with her are not protected under attorney-client privilege (even though Ross is an attorney). Of course, she needs information to do her job, but public information — like the complaint, policy, causes of action, and plaintiff’s demands — typically suffices.
“It gets tricky when you get into issues where the client needs me to push for levels of authority to settle a claim, and I may need some information on strategy,” she said, noting that she tries “to stay away from strategy calls with defense counsel and carriers and try to stick to the coverage arguments I can make outside the context of the attorney-client privilege.”
The speakers agreed that social distancing isn’t just for pandemic times — it’s crucial that parties excuse themselves if topics of discussion veer in a direction that could break attorney-client privilege.
“I’ve been in mediations where everyone is in a separate room and the mediator is going into different rooms to talk to everybody about their specific issues,” said Ross. “And it has worked because it shows the plaintiff that this is not going to be an easy case to deal with.”
That doesn’t mean lawyers and claims advocates never communicate, said Eckler.
“You may talk to the claims advocate,” he said, “but you’re surely not going to copy them on your email with your analysis and evaluation because that can be discovered.” &