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Fettering the Insurer's Privilege to Control the Defense It Is Duty-Bound to Provide
For more than 50 years, policyholders and their insurers have been struggling over the insurer's promise to defend and the insurer's control of the defense. Policyholders properly have been concerned that an insurance company that controls the defense of an action potentially covered by the carrier's duty to indemnify will use that control to avoid that very same indemnity obligation. In egregious cases where a lawyer hired by the carrier has abused his or her relationship with the insured ' the client ' so as to favor the lawyer's source of income ' the insurance company ” the courts have responded to protect the insured's interests. But most courts have ruled that such after-the-fact remedies are insufficient: They do not adequately compensate for the injury; meritorious claims are not pursued (in part because insureds may not discover the abuse); and the potential for this abuse alone undermines the dominant purpose of the insurance relationship ' to afford protection and peace of mind for the insured.
As a result, most jurisdictions have fashioned a number of rules affording remedies in cases of actual abuse ' by allowing bad-faith actions to proceed against insurers, by barring insurers from using the fruits of the poisonous tree, by allowing malpractice claims against the lawyer, and other measures. But most have held that where there is a potential abuse, a prophylactic approach is appropriate; thus, the insured is permitted to select the lawyer who will defend it, and the carrier continues to have the obligation to pay for that defense. This is usually referred to as the 'independent counsel' rule (or in California, the Cumis or 2860 rule).
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.