Generally, any communication between an attorney and client is privileged. I often tell clients that when they want to talk about their claim by someone, they should talk to their attorney only so as not to break any privilege issues. Although I know sometimes discussing the claim outside the attorney-client relationship is a must, those communications (emails, letters, etc.) are usually considered discoverable in the event of a lawsuit, and their insurance company is entitled to those non-privileged communications.

It’s not often that an insurance company ends up waiving the attorney-client privilege and work product protection privilege. We often hear how difficult it is to get the communications between an insurer and its coverage counsel or its attorneys. However, an Illinois Court recently ruled there are instances when attorney-client communications are discoverable. In this case, the insurer voluntarily injected a legal issue into a case it filed against its former coverage counsel and waived the right to keep its communications with its attorneys confidential. 

In Catalina London v. Johnson & Bell, Ltd.,1 the insurer sued former coverage counsel for negligent coverage advice. The former attorneys asserted they were entitled to privileged communications between the parties and brought a motion to enforce the subpoena for the privileged communications. The Court granted the motion to enforce the subpoena for privileged communications between the new coverage counsel and insurer Catalina London because the former attorneys had a right to bring a defense regarding whether they let a statute run or whether the claim was viable during the time of new counsel’s watch.

Generally, courts want to give each party a right to defend their case, and there are definitely times where communications between counsel and client may be relevant. Keeping in mind the attorney-client privilege when navigating a property insurance claim is important and having a discussion with your attorney regarding what communications are privileged and what breaks the privilege should be considered an essential part to moving your property insurance claim or litigation forward.

1 No. 11-7389, 2012 WL 4892852 (N.D. Ill. Oct. 10, 2012).