Alert
Bloom & Buell's

FIRST THING WE DO, WE CALL OUR LAWYER

If, God forbid, you should have reason to think you might be sued, or if you know you will be sued, don't follow the natural (and until now wise) impulse to call your trusty insurance agent and turn things over to him or her.

If you do, you may end up having to repeat that conversation under oath for the benefit of the party or parties suing you.

That seems to be what a recent Superior Court decision boils down to.

Seems that when a physician learned that he faced a lawsuit, he spoke with a claims representative of his insurer and told what he knew.  The plaintiff's attorney, apparently having little else to go on, demanded that the doctor tell him all about that conversation in a deposition under oath.

The doctor refused, having been under the impression that whatever he told the claims representative was between him and a service professional.  Accordingly, the doctor claimed that it was just like the attorney-client privilege that all courts will honor to the ends of the earth.

But a Superior Court judge has ruled that the privilege does not apply, unless the insurance representative is working directly under the direction of an attorney.  This, most attorneys will agree, is unlikely since it is the insurance company that decides how to handle a claim and hires attorneys to pursue the case.

But the judge, basing his decision on precedent setting cases such as the federal case of Sheet Metal Workers International Association v. Sweeney and the Massachusetts case of Petition of Department of Social Services to Consent with Adoption, says that whoever claims such attorney-client privilege must persuade the judge that he is entitled to it.

However, the judge did drop a hint that there might be an exception.  He writes that "... there is no suggestion in any decided Massachusetts case that a conversation between an insurer is, without more, (our italics) covered by the attorney-client privilege, even if that conversation occurs after the insured has been notified of the claim."

The judge did not expound on that without more phrase.  Possibly it leaves an opening for an appellate court to think of something more.

Until we learn what it is that would bring a conversation between an insured and an insurer under that attorney-client umbrella (if anything will), it is best to take a lesson from one of those old movies where the cops have Mugsy under the glaring light and Mugsy plaintively wails, "I want my lawyer."

Best to paraphrase Shakespeare:  "First thing we do, we call our lawyers."

For more information regarding this alert, contact Bloom & Buell via e-mail or call (617)254-4400 or write 1340 Soldiers Field Road, Boston, MA 02135.


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