The Attorney-Client Privilege in Bad Faith Insurance Litigation

The attorney-client privilege generally prohibits a lawyer from testifying on the subject of communications made to the lawyer by a client or relating to the lawyer’s advice to a client, except with the express consent of the client1. One notable exception has existed regarding certain portions of the claim file in insurance litigation where bad faith by the insurer is alleged2. However, an amendment to R.C. 2317.02 changed this exception to the attorney-client privilege doctrine, providing that the lawyer for the insurance company may only be compelled to testify regarding communications between the lawyer and the client, “that are related to the attorney’s aiding or furthering an ongoing or future commission of bad faith by the client,” subject to an in-camera inspection by a court. R.C. 2317.02(A)(2)3. Additionally, in order to invoke the exception to the attorney-client privilege, the party seeking disclosure of the disputed communication must first make a prima facie showing of bad faith, fraud, or criminal misconduct 4.

Since this change in the law is relatively new, it will be interesting to see how Ohio courts will construe it. Thus, lawyers handling bad faith litigation involving insurance companies should advise their clients of this change and how it may affect access to portions of the claim file that have been discoverable in the past.

Footnotes

1. See R.C. § 2317.02(A)(1).

2. Boone v. VanLiner Ins. Co. (2001), 91 Ohio St. 3d 209.

3. State ex rel. Ohio Gen. Assembly v. Brunner (2007), 114 Ohio St. 3d 386, 2007 Ohio 3780.

4. R.C. 2317.02(A)(2).

For more information on this topic contact Alvin Mathews at 614.227.2312. or visit our Legal Ethics and Professional Responsibility Resource Center.

This document has been prepared as a general reference for careful lawyers and their staff for informational purposes. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately, and possibly with involvement of legal counsel.

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