Insured's Right to Independent Counsel State Law Survey

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Summary

This survey examines an insured's right to independent counsel in situations where insurance defense counsel is placed in a position of conflict between the insurer and the insured. The survey covers all 50 U.S. states and the District of Columbia. In the usual tripartite insurer-attorney-insured relationship, the insurer has a duty to defend the insured and hires counsel to provide the defense. So long as the interests of the insurer and the insured coincide, they are both the clients of the defense attorney and the defense attorney's fiduciary duty runs to both the insurer and the insured. A common source of conflict is when issues of coverage are asserted by the insurer through a reservation of rights. Courts have responded with several methods for addressing conflicts of interest, which vary widely. In addition, some states have turned to their legislatures for the solution.