Ethics Committee Advisory Opinion #2000-01/05
By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its November 16, 2000 meeting.
An attorney may not ethically submit detailed billing statements to outside auditors without prior consultation and informed consent of the client, Rule 1.6(a). In addition, an attorney may not ethically comply with a request by or requirement of, an insurance company to seek consent for, or recommend, disclosure of detailed billing statements to a third party auditor unless a disinterested attorney, based on the circumstances of the case, could conclude that the benefits of disclosure to the client would outweigh any potential risks. Such circumstances would rarely, if ever, exist.
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized to carry out the representation. (Rules 1.6(a); 1.6(b)).
An insurance defense lawyer may not disclose billing statements to third party auditors employed by the insurance company unless the client consents after consultation. (Rule 1.6(a)).
The “implied authorization” exception to Rule 1.6(a) must be narrowly construed. (Rule 1.6(b)).
The “implied authorization” exception to Rule 1.6 does not extend to, or allow, disclosure of confidential information protected by the Rule to third party auditors.
An attorney may not ethically comply with a request or requirement to seek the consent of the client/insured to disclose billing statements to a third party auditor. (Rules 1.7 and 1.8).
Within the tripartite relationship of insurer, insurance defense counsel, and insured, defense counsel’s paramount duty extends to the insured.