{"id":903158,"date":"2024-08-15T14:02:21","date_gmt":"2024-08-15T20:02:21","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=903158"},"modified":"2024-08-15T14:02:24","modified_gmt":"2024-08-15T20:02:24","slug":"deposition-can-insurer-dictate-how-to-conduct","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/deposition-can-insurer-dictate-how-to-conduct\/","title":{"rendered":"Can Insurers Dictate How the Insured\u2019s Deposition Will be Conducted?"},"content":{"rendered":"\n

Esquire Deposition Solutions<\/a><\/p>\n\n\n\n

Insurers and large corporate legal departments are sophisticated consumers of legal services, but they face a constant struggle to contain the ever-rising cost of litigation against a background of budget tightening by senior executives. One strategy is to keep more legal work in-house. Other approaches include increasing the use of alternative legal service providers and artificial intelligence technologies to do routine work that might not require a traditional law firm. Some companies are reportedly hiring auditors to scrutinize law firm statements for billing errors and kick those statements back to the law firm if they believe the charges are excessive or unlawful.<\/p>\n\n\n\n

Yet another way companies are attempting to trim legal spending is through litigation billing guidelines that outside counsel is expected to follow.<\/p>\n\n\n\n

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It\u2019s clear to see how litigation billing guidelines can place the lawyer in the uncomfortable position of serving two masters: the client and the bill-paying insurer. Ethically navigating relationships between these two parties can be challenging.<\/strong><\/p>\n<\/blockquote>\n\n\n\n

To the extent that billing guidelines address logistics relating to billing and client reporting, they are ethically unobjectionable. However, billing guidelines can wander into ethically problematic areas when they place limits on the number of hours that outside counsel can charge for legal research or require that all depositions<\/a> in a case be handled by one attorney. A lawyer who acquiesces to the latter types of litigation billing guidelines may be violating the lawyer\u2019s ethical duty to exercise independent professional judgment while representing the client.<\/p>\n\n\n\n

A further ethical complication arises when the entity paying the legal fees is not, strictly speaking, the client. This occurs when an insurance company is providing a legal defense for its insuree. In this situation, the lawyer\u2019s actual client is not the insuree but the insurer that is paying the legal bills. The ethical boundaries are established by the\u00a0ABA Model Rule of Professional Conduct 5.4(c) (Professional Independence of a Lawyer)<\/a>, which provides:<\/p>\n\n\n\n

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  1. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer\u2019s professional judgment in rendering such legal services.<\/li>\n<\/ol>\n\n\n\n

    The ABA\u2019s model rules have one additional thing to say about this arrangement. The comment to\u00a0Rule 1.5<\/a>, on attorneys\u2019 fees, states that \u201can agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client\u2019s interest.\u201d<\/p>\n\n\n\n

    It\u2019s clear to see how litigation billing guidelines can place the lawyer in the uncomfortable position of serving two masters: the client and the bill-paying insurer. Ethically navigating relationships between these two parties can be challenging.<\/p>\n\n\n\n

    To make matters more concrete, here are some examples of ethically questionable litigation billing guidelines:<\/p>\n\n\n\n