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Adding to the insurer onslaught, the Defense Research Institute (“DRI”) announced that it was officially “opposed to the adopting of the Proposed Final Draft” of the RLLI because it had “grave concerns over several portions of this body of work,” contending that “[m]any provisions are add odds with the common law of insurance, and their adoption will impeded the ability of our members to represent policyholders and insurers60”. The DRI also speculated that “the proposed draft may engender more insurance coverage controversies and litigation61,” a perhaps self-fulfilling prophecy in light of the insurance industry’s apparent intent to oppose the RLLI at every turn.

Although many DRI members are what might be termed pure “insurer side” lawyers who are always representing insurers in coverage actions, business transactions or the like, much if not the majority of DRI attorney practice involves defending policyholders being sued by third parties. These lawyers are classic “insurance defense attorneys,” as the term has traditionally been used by layperson – to indicate defending policyholders who are defendants rather than insurers disputing coverage, although that latter group apparently had the ear of DRI leadership.

In the defense of claims against a policyholder, insurers may look like the clients because the control disposition of the case and compensation of counsel and normally determine selection of counsel as well. But insurers are in merely third-party payers or what might be termed “secondary” clients. Although a majority of states appear to adopt the “two-client model” or “tripartite relationship” view of defense counsel’s role when selected by an insurer to defend a policyholder facing a lawsuit, every two-client model state also makes clear that where there are conflicts between the insurer and the policyholder, defense counsel’s first duty is to the policyholder62. This, of course, is the only sensible means of applying a two-client model rather than the more analytically sound one-client model. For example, if defense counsel investigates and discovers information that could undermine a policyholder’s argument for coverage, it is not permitted to disclose this information to the insurer.

Under these circumstances, it is demoralizing to see an organization of lawyers siding strongly siding so strongly with the insurers that pay their fees (albeit at comparatively low rates and often with annoying fee audits and delays) rather than policyholders, who under the law in all states are DRI’s primary or main clients even if many also consider the insurer to be a “client”. In a dozen or so states that clearly embrace a one-client model, the policyholder is the only “client” and the insurer is a third-party payer, albeit one with substantial contract rights.