Are the Communications from a Claims Handler That Is an Attorney Privileged?

Posted on January 15, 2021


Hayden Haskins | author

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ICHQ | Site Author

I woke up in the morning and took out the trash. Yes, I am a lawyer, but in that moment, I wasn’t being a lawyer. I was cleaning my house.

The reality is simple. People get confused when an attorney works for an insurance company. As an attorney, I meet with clients, file pleadings, answer discovery, argue hearings, and try cases. Insurance attorneys don’t always do that. Sometimes they are little more than a claims examiner. They just have a law degree. People get confused by this.

Some insurance companies actually employ attorneys in house to handle claims and then when it comes time to discuss the claims process, the insurance company hides behind the attorney to conceal its communications. These attorneys/claims handlers may even falsely claim they are representing the insurance company.

Fortunately, numerous courts have taken this issue up. Why is this even important you might ask? Well later, when your insurance company doesn’t treat you fairly (let’s face it, if they put an attorney on your claim immediately, it looks like its headed towards unfair treatment), you may want to bring a claim for bad faith so you can get the compensation you deserve. One of the factors that we may look at is whether the attorneys engaged in what is known as arbitrary or capricious handling of your claim.

In these cases, it is important to be able to get a look at the notes and the internal correspondence to determine how it is the insurance company actually made decisions. Seeing this thought process can be crucial. No wonder an insurance company may want to hide it!

The good news for you is that you’re not really re-creating the wheel here, because this issue has been looked at over and over and many courts find that when you have an attorney in house acting as a claims adjuster, they don’t get to hide behind something called attorney client privilege.

Attorney-client privilege does apply to you though. So for example, if you and I have a discussion about your claim, and I am your lawyer, I ordinarily cannot reveal our discussions. That is sacred. There is no reason for them to know what we discussed or why. That allows us to have an open and honest relationship. You don’t want to lie to your lawyer, because your lawyer wants to be ready for anything that comes up.

Where it becomes problematic is these attorneys/claims adjusters for insurance companies. Sometimes they say that they need to keep their communications with the insurance company secret. How in the world are we going to show that an insurance company behaved arbitrarily in denying your claim, if we can’t actually see how they behave?

The good news is the answer is relatively simple. If an attorney is really acting as a claims adjuster, more likely than not those communications are not protected, and we can actually access those and use them.

Why would i even tell you about this? Because i don’t want you to be discouraged if you have a claim and you realize there’s an attorney involved for the insurance company. i don’t want you to not call your own attorney because you think that you have no chance at finding out what is going on. If that attorney/claims adjuster is breaking bad faith law, that can lead to additional compensation and recovery for you.