This paper examines some of the assumptions on which many contemporary assessments of defense counsel's relationship with the insurer and the policyholder rest, contends that some of the current turmoil in this area is traceable to shaky assumptions, and argues that the drafting of clearer liability insurance contracts would add stability to the relationships. Part I briefly describes the current uncertainty confronting policyholders and defense counsel. Part II explores what the most widely-used liability insurance contracts say about the responsibilities of insurance defense counsel, examining both the context in which these policies are sold and the texts themselves. It contends that current liability policies do not support a dualclient model when conflicts between insurer and policyholder arise. Part III discusses the ramifications of the conclusion reached in Part II. In brief, those who have concluded that counsel owes his or her allegiance to the policyholder in such circumstances have reached the right conclusion. Clearer liability insurance contracts would be helpful, however, in affirming this answer--or providing a different one if the insurance industry believes the current weight of opinion has reached the wrong result.
Robert H. II Jerry, Consent, Contract, and the Responsibilities of Insurance Defense Counsel, 4 Conn. Ins. L.J. 153, 204 (1997)