When an insurer hires a lawyer to defend a malpractice claim against another lawyer, who is the client, and can the insurer block turning over the file?

Plain-English summary

The committee addressed who the client is when an insurance company employs a lawyer to defend a legal-malpractice claim against another lawyer. It concluded that the lawyer being defended is the client. From that, the committee was unanimous that if the defended lawyer, who now has new counsel, has asked that the file be turned over to the new counsel, the insurance company cannot direct the lawyer to do otherwise, even though the insurer may be paying the bill.

The committee stated the principle plainly: the lawyer remains the client and is entitled to papers and documents just as any other client would be.

Currency note

This opinion was issued in 1985, before 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 Treat this page as historical context, not current guidance.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: In an insurer-funded defense, is the insurer or the defended party the client?

A: The committee concluded that the lawyer being defended is the client, not the insurance company paying the bill.

Q: Can the insurer stop counsel from giving the file to the defended lawyer's new counsel?

A: No. The committee was unanimous that the insurer cannot direct counsel to withhold the file when the client (the defended lawyer) has asked that it go to new counsel, even though the insurer pays the bill.

Q: What is the defended lawyer entitled to receive?

A: The committee said the lawyer remains the client and is entitled to papers and documents just as any other client.

Background and rules framework

The opinion is indexed to Washington RPC 5.4(c) (a third party who pays for a lawyer's services may not direct or regulate the lawyer's professional judgment, corresponding to Model Rule 5.4(c)) and RPC 1.15 (the then-current rule on declining or terminating representation and returning client papers, corresponding to Model Rule 1.16). The committee resolved the dispute by fixing the identity of the client, the defended lawyer, and then applying the client's right to the file regardless of who pays the fees.

Citations and references

Rules of Professional Conduct:

• Washington RPC 5.4(c) (third-party payer may not direct the lawyer's professional judgment), corresponding to Model Rule 5.4(c).
• Washington RPC 1.15 (declining or terminating representation; return of client papers), corresponding to Model Rule 1.16.

See also

• WSBA Ethics Op. 943: insurer-retained counsel, reservation of rights, and the insurer's confidences
• ABA Formal Op. 01-421: a lawyer working under insurance company guidelines
• ABA Formal Op. 471: surrendering papers and property to a former client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=62

Original opinion text

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

Advisory Opinion: 951
Year Issued: 1985
RPC(s): RPC 5.4(c); 1.15
Subject: Providing files on withdrawal; employment by insurance company; identity of client

The Committee was of the opinion that where you were employed by an insurance company to defend a malpractice claim against a lawyer, the lawyer is your client. Therefore, the Committee was of the unanimous opinion that if the lawyer, who now has new counsel, has requested that you turn over your files to his new counsel, the insurance company cannot direct you to do otherwise, even though the insurance company may be paying the bill. The lawyer remains your client, and is entitled to papers and documents just as any other client.