American College of Coverage Counsel
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An ACCC Dialogue: Is The "Common Interest" Exception Shrinking?
Wednesday, December 11, 2019, 2:00 PM - 2:45 PM EDT
Category: Presented by ACCC
Join us at 2:00 pm ET on Wednesday, December 11 for a 30-40 minute conference call to discuss common interest exceptions.
 
Dial In: 800-848-5704
Code: 6174397556#
No Advance Registration Needed--Just Dial In!
 
As part of the ACCC’s continuing effort to provide opportunities for dialogue about emerging insurance and bad faith issues, all Fellows are invited to join a conversation next Wednesday, December 11 at 2 p.m. Eastern concerning a November 21 opinion of the Illinois Supreme Court on the issue of whether and when an adverse party can force a policyholder to turn over privileged reports from its defense counsel?

Notwithstanding the sweeping “common interest” exception to the attorney-client privilege that it recognized three decades ago in Waste Management, the Illinois Supreme Court ruled last month that a broker that was being sued for failing to buy insurance with coverage for securities claims could not compel the policyholder plaintiff to provide it with reports from the defense counsel in those securities claims. In Robert R. McCormick Foundation, Inc. v. Arthur J. Gallagher Risk Management Services, 2019 IL 123936 (Ill. November 21, 2019), the court declared that its expansion of the “dual client” underpinnings of the “common interest” doctrine to include a case where an insured was in litigation with its liability insurers could not support a further expansion to a malpractice dispute between an insured and its broker. In refusing to extend Waste Management outside the insurer-insured context, the court observed that the broker did not have any claimed duty to defend or stand in the shoes of the insured such that a “common interest” might arguably apply. It concluded, therefore that “To apply the doctrine here would be at odds with the purpose of the attorney-client privilege to promote full and frank consultation between a client and legal advisor without fear of compelled disclosure. It seems to us that Gallagher’s and the Foundations’ interests were always adverse, and there was not a commonality of interest in the same way that is the case when an insurer has a duty to indemnify and defend from the beginning .”


What effect will this new decision have on the ability of insurers to use the “common interest” exception in Illinois and other states? That will be the subject of a lively conversation and debate among three of our smartest Chicago Fellows: Karen Dixon (Skarzynski Marick); Scott Seaman (Hinshaw Culbertson) and John Vishneski (Reed Smith).
 
You do not need to pre-register for this call. Just use the dial in information listed above. Only ACCC Fellows may participate, however. Also, as these conversations are meant to be candid and informal, the contents of the conversation shall not be recorded or transcribed by any participant.