When insurance-defense counsel learns from the insured a fact suggesting the insured may not be covered, may the lawyer disclose it to the insurer that hired the lawyer?

Plain-English summary

The inquiry concerned a lawyer employed by an insurance company to represent the driver of an automobile. The client told the lawyer that the owner of the vehicle had expressly asked the client to conceal the fact that the car had been taken without parental permission. The inquiring lawyer noted that, if true, the client might no longer be an insured under the owner's policy through which the lawyer was employed.

After considerable discussion, the committee concluded that the information the client gave the lawyer is a secret as that term is used in RPC 1.6. The committee was of the opinion that the lawyer therefore could not disclose that information and should continue to represent the client.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 tell the insurer a fact from the insured that would defeat coverage?

A: Under this 1989 opinion, no. The committee concluded the information is a secret under RPC 1.6, so the lawyer could not disclose it to the insurer.

Q: Does the lawyer being paid by the insurer change the duty?

A: No. The committee treated the insured as the client whose secret is protected, even though the insurer employed the lawyer, and said the lawyer should continue the representation.

Q: What should the lawyer do with the coverage information?

A: The committee's direction was that the lawyer could not disclose the secret and should continue to represent the client; it did not authorize disclosure to the insurer.

Background and rules framework

RPC 1.6, Washington's version of ABA Model Rule 1.6, protects client confidences and secrets. In the insurance-defense triangle, the lawyer is paid by the insurer but represents the insured. The committee applied RPC 1.6 to hold that a coverage-relevant fact disclosed by the insured is a protected secret the lawyer cannot reveal to the insurer, and that the lawyer should continue the representation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information)
• Washington RPC 1.6

See also

• WA Ethics Op. 1298: Undisclosed Trust Account in Bankruptcy
• WA Ethics Op. 1311: Judge Asks a Public Defender Who Has Been Meeting With Counsel

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=396

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Committee reviewed your inquiry concerning your obligation, after you have been employed by an insurance company to represent the driver of an automobile, your client advises you that the owner of the vehicle expressly asked him to conceal the fact that the car had been taken without parental permission. You state in your inquiry that if that were true, your client may no longer be an insured under the owner's policy through which you are employed. After considerable discussion, the Committee concluded that the information given to you by your client is a secret as that term is used in RPC 1.6, and that you therefore could not disclose that information, and that you should continue to represent your client.