DBHAWAII March 25, 1999

Can insurance defense counsel send the insured's confidential information or billing records to the insurer's outside auditors?

Short answer: The opinion concluded that defense counsel may give confidential information to an insurer that has a duty to defend so long as it is not circulated further, but may not send it to third persons, including the insurer's outside auditors, without the insured's express informed consent under HRPC 1.6(a) and 1.8(f)(3).

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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current Hawaii Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The opinion addressed the scope of permissible disclosure of confidential client information pertaining to the representation of an insured. It concluded that an insurance defense attorney may provide such information to an insurance company that has a duty to defend the insured client, so long as the information provided is not subsequently circulated to third persons.

The opinion concluded that the attorney shall not provide confidential client information pertaining to the representation of the insured to third persons, either directly or via the insurance company, without first obtaining the express informed consent of the insured, citing HRPC 1.6(a) and HRPC 1.8(f)(3). It stated that informed consent should include discussion of the effect of disclosure on the waiver of the insured's right to confidentiality, the attorney-client privilege, and the work product doctrine, and that insurance contract provisions standing alone do not provide the required express informed consent.

As an example, the opinion concluded that an attorney shall not send confidential client information, including attorney's bills that contain such information, to an insurer's "outside" (that is, compliance) auditors without such consent.

Currency note

This opinion was issued in 1999, before the Hawaii Supreme Court's 2014 revisions to the Hawaii Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can insurance defense counsel share the insured's confidential information with the insurer?

A: The opinion concluded that defense counsel may provide such information to an insurer that has a duty to defend the insured, so long as it is not subsequently circulated to third persons.

Q: Can counsel send the insured's confidential information or bills to the insurer's outside auditors?

A: Not without consent. The opinion concluded that an attorney shall not send confidential client information, including bills containing such information, to an insurer's outside auditors without the insured's express informed consent.

Q: Does the insurance contract supply that consent?

A: No. The opinion concluded that insurance contract provisions, standing alone, do not provide the required express informed consent, which should address the effect on confidentiality, the attorney-client privilege, and the work product doctrine.

Background and rules framework

The opinion interprets HRPC 1.6(a) (confidentiality of information) and HRPC 1.8(f)(3) (a lawyer's acceptance of compensation from a third person is conditioned on protecting confidential information under Rule 1.6). These correspond to Model Rules 1.6 and 1.8.

Citations and references

Rules of Professional Conduct (Hawaii; cf. Model Rules):

HRPC 1.6(a) (confidentiality of information) (cf. Model Rule 1.6)
HRPC 1.8(f)(3) (compensation from a third person; protection of confidential information) (cf. Model Rule 1.8)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Office of Disciplinary Counsel
Supreme Court, State of Hawaii
1132 Bishop Street, Suite 300
Honolulu, Hawai'i 96813
Telephone (808) 521-4591

FORMAL OPINION NO. 36

This opinion covers the scope of permissible disclosure of confidential client information pertaining to the representation of an insured.

An insurance defense attorney may provide such information to an insurance company which has a duty to defend the insured client so long as the information provided is not subsequently circulated to third persons.

The attorney shall not provide confidential client information pertaining to the representation of the insured to third persons (either directly or via the insurance company) without first obtaining the express informed consent of the insured. HRPC 1.6(a); HRPC 1.8(f)(3).

Informed consent should include discussion of the effect of disclosure on the waiver of the insured's right to confidentiality, the attorney-client privilege, and the work product doctrine. Insurance contract provisions, standing alone, do not provide the required express informed consent.

Thus, for example, an attorney shall not send confidential client information, including attorney's bills that contain such information, to an insurer's "outside" (i.e. compliance) auditors without such consent.

DATED: Honolulu, Hawai'i, March 25, 1999.

Bernice Littman
Chairperson, Disciplinary Board

Carole R. Richelieu
Chief Disciplinary Counsel

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