The following items on this page change from time to time. They are a sampling of lawyer legal malpractice, ethics, expert witness procedure, or evidence law cases that have special impact.
The Colorado Supreme Court has ruled that an outside contractor can be part of the attorney – client privilege chain. The privilege was recognized in the context of the client’s communications with outside non-lawyer contractors. In Alliance Construction Solutions, Inc. v. Department of Corrections, 54 P.3d 861 (Colo. 2002), a construction dispute, the court held that the Department of Corrections’ communications with its outside construction consultant were privileged. The court adopted a four-factor test: (1) the consultant must have a significant relationship with the client and the client’s need for legal services; (2) the communications must be for the purpose of seeking legal services; (3) the communications must be within the scope of the contractor’s duties in relation to the seeking of legal services; and (3) the parties must intend that the communications remain confidential.
The D.C. Circuit delivered a similar holding in FTC v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002). There the court recognized the privilege in the context of the client’s communications with outside contractors, even including public relations and government affairs consultants
The Montana Supreme Court ruled that defense attorneys do not have a relationship with both the insured they are hired to defend and also the insurer. In Montana, there is one client, and that is the insured. Attorneys who submit to insurer-imposed billing guidelines and auditing requests violate their duties of professional conduct. In the Matter of the Rules of Professional Conduct and Insurer Imposed Billing Rules and Procedures, No. 98-612, Mont. Sup., 2000 Westlaw 502545.
In contrast, Arizona has held that an attorney – client relationship can exist between an insurer and the attorney it hires to represent an insured, even where there is no express agreement. Paradigm Ins. Co. v. The Langerman law Offices 1999 WL 672662 (Ariz. Ct. App. Aug. 31, 1999). To avoid some of the problems raised by that possibility of a defense attorney having two masters, consider a letter like the form LT Insurer See other interesting Arizona cases on expert witnesses, reasonable attorney fees, malpractice, and insurance.
Federal – S. Ct. Humana, Inc. v. Forsyth, 119 S.Ct 710 (1999) held that policy beneficiaries could sue under state law (and also RICO) for a health insurer’s fraud in negotiating health care provider discounts that were not passed on to the insureds. The insurer charged a percentage of the apparent medical bill to the insured as a copayment but then negotiated a lower payoff of the insurer’s 80%.
Texas. Expert supplementation, timing of: Expert report given by Plaintiff in January. Plaintiff’s expert deposed in March. Defendants moved for summary judgment, set hearing for October 28. Plaintiff attempted to supplement expert report in October, but trial court struck it as being untimely, granted summary judgment. Affirmed. Mack v. Suzuki Motor Corp., 6 S.W.3d 732 (Tex. App. – Houston [1st Dist.] 1999, n.w.h.) (Cohen, J.). See other interesting Texas cases on expert witnesses, reasonable attorney fees, and legal malpractice.
North Dakota, South Dakota. Bucklin, Klemin & McBride, P.C. publishes a litigation developments newsletter of North Dakota and South Dakota decisions affecting litigation and insurance.
In looking at insurance cases involving contacts in different states, remember that North Dakota uses the significant contacts doctrine in deciding insurance law that applies in conflict of laws. Daley v. American States Preferred Ins. Co., 1998 ND 225, 587 NW2d 159.
We usually maintain a whole page at least (sometimes more) of Dakota expert witness law.