FL: Attorney-Client Privilege May Apply Between Separate Attorneys Representing the Same Client

Facts: Clients were involved in construction litigation in which their insurance company hired Conroy, Simberg and Ganon (CSG) to represent them under a reservation of rights. The clients also hired their own personal counsel. After the completion of the original litigation, which resulted in the insurance company not paying the entire judgment, the clients sued CSG for malpractice, claiming that CSG failed to advise them as to whether or not the insurance company would indemnify them against any adverse judgment. As an affirmative defense, CSG alleged that the actions of the personal lawyers contributed to the Clients’ damages and would either bar or reduce any recovery. During discovery, CSG took the depositions of both lawyers. When both attorneys were asked what discussions they had with the Clients regarding the coverage questions raised by the reservation of rights letter, both asserted the attorney-client privilege. Over Clients’ objections, the trial court entered an order compelling discovery from the attorneys.

 

Issue: Were the communications privileged?

 

Ruling: Yes. CSG posits that because it was engaged in a "joint defense" of the clients with the personal attorneys, the communications between the clients and their personal attorneys were not subject to the assertion of the privilege. However, the "joint defense" exception to waiver of the attorney-client privilege did not apply in this case because the private attorneys were retained personally by the clients, while the insurance company retained CSG to represent the clients in the suit. Although CSG and the personal attorneys represented the same client, the two parties had divergent interests. Particularly in an insurance representation context, the interest of the insured in further protecting his or her own position may compel the insured to retain and communicate with a personal attorney. The client has every right to assume that the attorney will keep those communications confidential. In this case, there is no evidence that the clients ever intended to share with CSG all of their communications with their personal attorneys.

 

Lesson: The attorney client privilege applies to attorney’s who are retained separately even if they have the same client.