Advisory Opinions on Insurer Litigation Guidelines: Ethical Trump Cards or Just a House of Cards?

One of the things I am often called upon to do for insurers is to review legal bills from “non-panel counsel” including “independent counsel.” Invariably one of the first things independent counsel will do is to try to hide behind one or the dozen or more state bar legal ethics opinions on complying with insurer litigation guidelines.  In doing so, they will invariably say that as independent counsel they are not obligated to comply with insurer guidelines.

There is no question that independent counsel believe they are playing an ethical trump card when they cite to an “advisory” state bar ethics opinion on the issue of complying with insurer litigation and billing guidelines.  But are these state bar advisory opinions actually ethical trump cards or are they just a house of cards? To answer this question, let’s begin at the beginning.  Let’s take a look at why attorneys seek an ethics opinion in the first place. Continue reading