July 08, 2020 Feature

The Right to Select Counsel and the Rules of Professional Conduct

By Christopher H. Yetka
Sorbetto/GettyImages/DigitalVision Vectors

Sorbetto/GettyImages/DigitalVision Vectors

A policyholder cannot give informed consent unless it is told of all material facts that could affect the representation, including the relationship between defense counsel and the insurer.

Third-party liability policies often state that the insurer has both the duty and the right to defend the policyholder. Most courts interpret these policy terms to give the insurer the right to select defense counsel. However, many courts recognize that the right to defend is limited by both the rules of professional conduct and fiduciary duties inherent in the contract. These limitations can, in many circumstances, create a policyholder’s right to select defense counsel.

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