Advisory Opinion: 201802

Year Issued: 2018

RPC(s): RPC 1.0A(e), 1.2(a), 1.6(a), 5.4(c)

Subject: Quadripartite and Tripartite Relationships: May Lawyer Provide Client Confidential Information to Third or Fourth Party?


Executive summary: Lawyers are often retained by third parties, like insurers or employers, to defend an assured or an employee, respectively. In the course of doing to, the retained lawyer must often communicate both with the client and with the insurer or employer in order to effectively manage the defense and enable to the insurer or employer to evaluate and resolve the claim.

A vast body of case law has developed regarding this tripartite relationship. The nature of the tripartite relationship differs from jurisdiction to jurisdiction. But generally, communications made within the tripartite relationship are afforded the same or similar protections as lawyer-client privileged communications or work product.

Sophisticated insurers or employers sometimes consult with or engage others to manage the claim or otherwise participate in the tripartite relationship, thereby adding a fourth stakeholder. Although case law involving this quadripartite relationship is not as well developed, the traditional application of the Rules of Professional Conduct inform the relationship similarly.

Before communicating to a fourth party, the lawyer will need to take certain steps in order to avoid disclosing information in violation of the lawyer’s duty of confidentiality to the client. This opinion addresses the so-called quadripartite relationship across four different scenarios.

Facts:
Scenario 1:

Driver causes an automobile accident and is sued.

Driver notifies Broker of the claim. Broker tenders the claim to Insurer, who engages Third-Party Administrator to manage the litigation.

Third-Party Administrator hires Lawyer to defend Driver in the lawsuit. Third-Party Administrator asks Lawyer for an initial case evaluation and status reports every 30 days.

Scenario 2:

Supervisor is employed by Company. Supervisor is sued for harassment and discrimination.

Supervisor notifies HR Manager of the lawsuit, and HR Manager reports the claim to Insurer. Insurer appoints Lawyer to defend Supervisor in the lawsuit.

HR Manager asks Lawyer to copy HR Manager and Insurer on all future communications about the case, including status reports and case assessments.

Scenario 3:

Associate is employed by Law Firm. Associate is accused of legal malpractice, and suit is filed against Associate and Law Firm.

Associate informs Partner, who notifies Broker of the claim. Broker tenders the claim to Insurer under Law Firm’s professional liability insurance policy. Insurer assigns Lawyer to defend the claim.

Broker asks Lawyer to copy Broker, Partner, and Insurer on Lawyer’s all correspondence and status reports.

Scenario 4:

Physician is employed by Hospital. Hospital purchases from Insurer professional liability insurance coverage for Physician as a term of employment.

Physician is sued for medical malpractice. Physician tenders the claim to Insurer, who hires Lawyer to defend Physician in the lawsuit.

In the course of defending Physician, Lawyer drafts a written case assessment, which is addressed to Physician and Insurer. Insurer does not issue a reservation of rights.

Hospital’s Risk Manager calls Lawyer and asks (1) for a copy of the written case assessment, (2) to receive copies of all future status reports in the case, and (3) to provide strategic litigation input to the extent that Hospital is a potential co-defendant to the lawsuit. On the particular facts of the lawsuit, there is no indication that the interests of Hospital and Physician are directly adverse.

Questions:

May Lawyer provide the requested information to Third-Party Administrator (Scenario 1), HR Manager and Insurer (Scenario 2), Broker, Partner, and Insurer (Scenario 3), and Risk Manager (Scenario 4)?

Conclusion:

No, unless Lawyer’s client in each matter provides informed consent to the disclosures. [n.1]

Discussion:

Traditionally, a lawyer who is retained by an insurer to represent and defend an insured against claims acts within what is commonly referred to as a tripartite relationship. This relationship differs, depending on the jurisdiction. The tripartite relationship governs or describes how the lawyer, client, and insurer communicate and contribute to the defense.

Often, however, another party can become involved in some aspect of the defense. A third-party administrator, for example, might be hired by the insurer to manage administrative and financial aspects of the claim, paying invoices for legal fees and costs, providing the insurer with consolidated or abridged status reports, or establishing a reserve for the defense and indemnity of the claim. Scenario 1 above sets forth this example. Other examples of a fourth stakeholder or participant include the HR Manager in Scenario 2, the Broker in Scenario 3, and the Hospital Risk Manager in Scenario 4.

Although the tripartite relationship is relatively well defined in many jurisdictions, the addition of a fourth stakeholder or participant is not well defined. Nevertheless, traditional application of the Rules of Professional Conduct inform this so-called quadripartite relationship similarly to that of the tripartite relationship.

Under RPC 1.6(a), a lawyer “shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” The term, “informed consent” refers to “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” RPC 1.0A(e).

When obtaining informed consent, “[t]he lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision.” RPC 1.0A cmt. 6. This generally requires the lawyer to disclose “the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives.” Id. “Obtaining informed consent will usually require an affirmative response by the client or other person.” RPC 1.0A cmt. 7.

“[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by RPC 1.4, shall consult with the client as to the means by which they are to be pursued.” RPC 1.2(a). A lawyer must not “permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” RPC 5.4(c).

Therefore, in each of the four scenarios, Lawyer can seek informed consent from the client to disclose confidential information as requested, provided that in doing so, Lawyer’s professional judgment is not directed or regulated by the non-clients.

However, in providing diligent representation to each client, Lawyer should become or remain familiar with law that is applicable to the matter. For example, in obtaining informed consent from a client to make the requested disclosure, Lawyer should analyze the extent to which such disclosures might adversely affect the lawyer-client privilege, work product protections, and other applicable privileges or privacy protections. Such questions are matters of substantive law, which are beyond the scope of this Committee’s review.

Similarly, whether a lawyer-client relationship exists between Lawyer and Third-Party Administrator, HR Manager, Insurer, Broker, Partner, and Risk Manager in these various contexts is also a matter of substantive law that turns on the specific facts of the case. See, e.g., Bohn v. Cody, 119 Wn.2d 357, 363, (noting that “[t]he existence of lawyer-client relationship ‘turns largely on the client’s subjective belief that it exists’”) (quoting In re McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983)); but also see, e.g., Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 388, 715 P.2d 1133 (1986) (stating that “[i]n a reservation of rights defense, RPC 5.4(c) demands that counsel understand that he or she represents only the insured, not the company”), Clark Co. Fire Dist. No. 5 v. Bullivant Houser Bailey, P.C., 180 Wn. App. 689, 699–700, (holding that insurer lacked standing to sue lawyer hired by insurer to defend the assured).

If circumstances were to change such that it later became necessary to reevaluate the parties’ interests or to reaffirm or obtain new informed consent from Lawyer’s client (e.g., Insurer later issues a reservation of rights or direct adversity arises between Lawyer’s client and Third-Party Administrator, HR Manager, Insurer, Broker, Partner, or Risk Manager in these various contexts), then Lawyer must do so. If the circumstances become such that it is no longer in a client’s interest to continue to agree that information should be disclosed as requested, then Lawyer must confer with the client about the risks and benefits, and discontinue disclosure if the client so directs.

Endnotes

1. The question of whether information can be disclosed to an outside auditor’s service was addressed in earlier advisory opinions. See Wash. Adv. Op. 195 (1999); see also Wash. Adv. Op. 1758 (1997).

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Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.