Conflicts of interest in the defense of medical malpractice cases

Hoover, John David

I.

INTRODUCTION

Much has been written about the potential for conflicts of interest in the tripartite relationship between insurance carrier, insured, and insurance defense counsel.' At best, an error of judgment on a conflict that arises can expose an attorney to lost business, disqualification, or the prospect of becoming a witness. At worst, a lawyer who errs on conflict questions in the representation of insurance carriers and insureds may be subject to disciplinary proceedings and claims of legal malpractice.

In the context of medical malpractice defense, the tensions between the various competing interests can become quite pronounced due to the visceral nature of medical malpractice cases and the nature of the parties involved.2 Physicians are generally more sophisticated clients than the average insureds, not only because they are professionals, but also because they deal with legal issues and insurance companies on something of a regular basis. More than the typical individual insured, medical professionals generally have substantial insights into the business, insurance and legal issues involved in the defense of medical malpractice claims. Even though there are many corporate and some individual insureds who possess the same sensitivity to the issues associated with insured claims, doctors have a much greater stake in medical malpractice claims because their reputations are jeopardized by such claims. In fact, this situation is often exacerbated because the medical community is small and malpractice claims must be reported to state regulatory agencies, the National Practitioners Data Bank, and various licensing and credentialing bodies. Moreover, doctors who are sued often react very emotionally to the entire process. While the typical corporate or individual insured may have no great personal stake in the outcome, doctors do. As a result, they often react to a medical malpractice lawsuit as both a personal and professional affront. Finally, a medical malpractice claim that is lost can result in a huge plaintiff's verdict, which can result in exposure, media exploitation, and even licensing problems for the physician defendant.

Given the inherent nature of medical malpractice suits, insurance defense counsel who represent medical professionals must be extra diligent so that when conflicts of interest do occur, they are recognized and ameliorated in an appropriate and timely fashion. This article will discuss the responses of various courts to the subject of conflicts of interest in the defense of medical malpractice cases. It will also identify some areas in which these conflicts might occur. Finally, the article will offer a practical analysis that might assist counsel in avoiding ethical difficulties or, at the very least, in reducing their negative impact on the clients and attorneys involved.

II.

CASE REVIEW

There are many potential sources of conflicts of interest when representing physicians in medical malpractice cases. In fact, some of the leading cases on conflicts of interest in the context of insurance defense litigation arise in medical malpractice defense. One such case was Rogers v. Robson, Masters, Ryan, Brumund and Belom, arising in Illinois.' Dr. Rogers was sued for medical malpractice. His insurance company retained the Robson Masters firm to defend the action. Early on, Dr. Rogers informed his lawyers that he did not and would not consent to a settlement of the claim. Prior to trial, however, Dr. Rogers' carrier and his counsel settled the malpractice claim on a covenant not to sue. The settlement provided that Dr. Rogers would admit no liability. Dr. Rogers had not consented to the settlement; in fact, he was not advised until afterward that a settlement was contemplated.

With respect to the issue of settlement, Dr. Rogers' malpractice policy contained the following provision: The company will pay on behalf of the insured all sums which the insured shall become obligated to pay as damages... and the company shall have the right and duty to defend any suit against the insured seeking such damages, even if any of the allegations of the suit are groundless, false, or fraudulent, and may make such investigation and with the written consent of the insured such settlement of any claim or suit as it deems expedient, but the company shall not be obligated to defend any suit after the applicable limits of the company's liability has been exhausted... nor shall the written consent of a former insured be required before the company may make any settlement of any claim or suit even if such claim or suit was made, proffered or alleged while such former insured was an insured under this policy.4

Thus, while Dr. Rogers' consent to settlement would have been required if he continued to be an insured, his consent was not required under the policy if he became a former insured. Dr. Rogers filed suit against his attorneys for wrongfully settling the underlying medical malpractice claim. The attorneys moved for summary judgment, claiming that Dr. Rogers, as a former insured, had no right to object to any settlement under the foregoing policy provision. The trial court granted the motion, and Dr. Rogers appealed.

The Illinois appellate court determined initially that the insurance contract indeed provided for and authorized the carrier to settle the underlying medical malpractice claim without Dr. Rogers' consent. However, the court's inquiry did not end there. Dr. Rogers had also argued that his attorneys breached their own duties to him, separate and apart from the insurer's obligations to Dr. Rogers under the policy.

The appellate court discussed who might constitute a client in the insurance defense context and concluded that an insurance defense attorney represents both the insured and the insurer in furthering the interests of each.' This might be considered the dual representation rule.' With respect to the insured, the appellate court stated: "The attorney-client relationship between the insured and the attorney imposes upon the attorney the same professional obligations that would exist had the attorney been personally retained by the insured .... The fact that the attorney also represents the insurer in no way alters his obligations and responsibilities to the insured."7

The appellate court also concluded that such an arrangement is not inherently wrong. Even if conflicts do arise, counsel need not always withdraw: Ordinarily, since the interests of insurer and insured are harmonious, there is no conflict and the attorney is able to exercise independent judgment for both clients. Therefore, in the usual instance, there is nothing improper or unethical about representing the interests of both. However, situations can arise where those interests may become conflicting.... When a conflict does arise, serious ethical considerations prohibit an attorney from continuing to represent both the interests of the insured and the insurer. However, the attorney does not necessarily have to withdraw from the case. In many situations, if, after full and frank disclosure, the clients are willing to consent to the attorney's continued representation on their behalf, ethical considerations are satisfied and the attorney may continue to represent the conflicting interests.'

The appellate went on to provide some direction about the nature of the disclosure required to permit an attorney to continue representing an insurer and an insured in the face of conflicting interests. The extent of such a disclosure must be determined on a case by case basis, but "the attorney must disclose all facts and circumstances which in the judgment of a lawyer of ordinary skill and capacity, are necessary to enable his client to make a free and intelligent decision regarding the representation."

The appellate court also discussed the need to keep a client, who is the insured of another client, fully informed, apart from the need to disclose all facts material to the conflict: Any attorney-client relationship includes the duty [of] the attorney to advise the client of progress in a case or controversy and this duty is not altered by the presence of a third-party insurer whom the lawyer also represents. An insured must be informed of any settlement offers that affect him so that the insured may take proper steps to protect his own interests."

Of particular issue to the court was the notice Dr. Rogers provided to his attorney before settlement. In fact, Dr. Rogers' lawyer had specifically noted that the case would be defended. Notwithstanding, the lawyer effected a settlement without Dr. Rogers' knowledge, much less his consent. The appellate court observed:

Apart from any considerations arising from the insurance policy, we believe that when defendant became aware that a settlement was imminent because of the preferences of the insurance company, and that their own client, the plaintiff, did not want the case settled, a conflict arose and defendant could not continue to represent both without a full and frank disclosure of the circumstances to its clients. Furthermore, the general duties of the defendant in representing plaintiff were strengthened by the defendant agreeing, if it did, to defend the case rather than settle. Having continued representing both the insurer and the insured without the requisite disclosure, defendant breached its duty to plaintiff. When an attorney attempts dual relationships without making full and frank disclosure required of him, he is liable to the client who suffers loss caused by the lack of disclosure. I I

In fact, counsel's conduct precluded Dr. Rogers from making fundamental, informed decisions about the representation. Thus, the appellate court overturned the award of summary judgment as improper:

By failing to inform plaintiff of the proposed settlement, defendant foreclosed plaintiff from alternatives that were available to him. Plaintiff could have consented to continued representation by the defendant at the expense of the insurance company with the accompanying likelihood that the case would be settled without his consent, for, as we have held, the insurance company by virtue of the contract could settle without plaintiff's consent. If plaintiff believed such a course of action was not in his best interests, he could release the insurance company from its obligation under the policy, select different counsel, defend the action at his own expense and bear the risk of an adverse decision. Having failed to provide plaintiff with the proper disclosure of the facts and then obtaining plaintiff's consent to continued representation, defendant breached a duty which, if damages and proximate cause are established, will make defendant liable to plaintiff for the loss caused by the lack of disclosure."

The Illinois court thus drew a clear distinction between an insured's rights under an insurance contract and the insured's entitlement to fidelity from his attorneys, even if hired pursuant to a contract of insurance. "Notwithstanding the defendant's assertion that it had no duty toward the plaintiff because of the policy provision eliminating the requirement of the consent, we are unable to agree that such provision offers any justification for abrogating duties defendant owed plaintiff as the plaintiff's attorney."13

The Supreme Court of Illinois granted Robson Masters' petition for leave to appeal, and affirmed the judgment of the appellate court .14 The supreme court agreed that both Dr. Rogers and his carrier were clients of the lawyer defending the case. The court also held that Dr. Rogers "was entitled to a full disclosure of the intent to settle the litigation without his consent and contrary to his express instructions."" As the court noted:

Defendants' duty to make such disclosure stemmed from their attorney-client relationship with plaintiff and was not affected by the extent of the insurer's authority to settle without plaintiff's consent. We need not and therefore do not consider the question whether plaintiff's insurance carrier was authorized to settle the malpractice action without his consent. 16

Rogers thus stands for the propositions that: 1) an insurance defense attorney has an attorney-client relationship with both the insurer and the insured; 2) insurance defense counsel's duties to the insured are ethical duties separate and distinct from the insured's contract rights; and 3) insurance defense counsel who settles a case against the insured's wishes breaches fiduciary obligations to the client."

In Lieberman v. Employers Insurance of Wausau, a New Jersey physician sued his medical malpractice liability insurer for breach of contract, and sued his attorney as well for violating the attorney-client relationship when a claim was settled without his consent." Dr. Lieberman had been sued for the allegedly negligent administration of an arteriogram. Dr. Lieberman was insured by a medical malpractice policy that contained a clause permitting the carrier to negotiate and, with Dr. Lieberman's written consent, settle any claim the company deemed expedient. At the time of the claim, a New Jersey Medical Society program placed a premium surcharge on chargeable claims.

New Jersey's Medical Review and Advisory Committee determined that the claim should be settled, and Dr. Lieberman's carrier obtained Dr. Lieberman's consent to do so. Dr. Lieberman's carrier had retained an attorney to defend him, and that attorney was notified. Subsequent to giving his consent to settle, Dr. Lieberman learned facts which indicated that the patient might have been malingering or engaged in fraud. Thereafter, Dr. Lieberman revoked his consent and advised his carrier that he thought the case should be tried. Despite the clarity of his communication, the carrier advised him that his consent could not be revoked. Dr. Lieberman then called his attorney and explained his reluctance to settle the case.

The attorney agreed to try the case at the doctor's behest, and in fact prepared the case for trial. However, the attorney did not advise Dr. Lieberman of ongoing settlement negotiations. Though Dr. Lieberman was placed "on call" for trial by his attorney, the matter was settled at a conference with the court at which Dr. Lieberman was not present.

Dr. Lieberman sued his carrier and the attorney to recover the premium surcharges assessed against him as a result of the chargeable claim. The trial court thereafter granted the insurance company's motion to dismiss, but denied the motion to dismiss filed by Dr. Lieberman's attorney. The court then entered judgment in favor of Dr. Lieberman, and the attorney appealed.

The Superior Court of New Jersey first disposed of the issue regarding Dr. Lieberman's attempt to withdraw his consent, stating that "[iln the absence of a policy provision that the consent, once given, may not be withdrawn, or of proof that the insurer has acted upon such consent to its detriment, we discern no sound reason for holding the consent to be irrevocable . . . "

The court also dismissed the attorney's argument that he was just a "messenger boy." and an agent of the insurer of the action brought against him and his responsibility to the plaintiff."20 As in Rogers, the Lieberman court determined that "[a]n attorney provided by an insurance company to represent an insured defendant owes that person the same unswerving allegiance that he would if he were retained and paid by the defendant himself." 21 The Lieberman court also appears to have adopted a dual representation rule, holding that "while [an attorney] owes to both [an insured and insurer] a duty of good faith and due diligence in the discharge of his duties, the right of one cannot be subordinated to those of the other,"22 Correctly noting the law, the court also emphasized that if an attorney believes that discharging his duties to the insured would conflict with the dischare of duties to the carriers, the attorney cannot represent both.

The appellate division affirmed the trial court, stating: [The lawyer's] representation of plaintiff in the malpractice lawsuit obligated him to advise the physician of the implications and possible consequences of the dispute with the insurer over the revocation of the settlement authorization, including the probability of a conflict of interest which would either require McDonough to withdraw from the case or, at least, to advise Dr. Lieberman to retain other counsel to represent him with respect to that controversy. To this end, McDonough should have disclosed to Dr. Lieberman all facts and circumstances which, in his judgment, were necessary to enable his client to make an intelligent decision in the matter. Furthermore, there could be no doubt that McDonough should have told Dr. Lieberman on the scheduled trial date that a settlement was imminent, solicited his views with respect to it and also discussed with him the courses of action which were opened to him if he persisted in objecting to the settlement. In the latter case, we think that McDonough was duty bound to bring the matter to the attention of the trial judge and seek a continuance so as to enable Dr. Lieberman to take such action as he might deem appropriate in the circumstances. 23

Although the appellate division thus agreed that the attorney breached the duties imposed upon him by the attorney-client relationship, the case was reversed and remanded for a new trial on damages.

All the parties appealed and, with respect to Lieberman's claims against his counsel, the Supreme Court of New Jersey decided two issues: (1) whether an attorney retained by an insurance carrier to represent an insured may settle the claim contrary to the wishes of the insured; and (2) the measure of damages .24 As a preliminary matter, the supreme court agreed with the lower appellate court that the "consent of the insured to authorize the insurer to effect a settlement is revocable in the absence of a contrary provision. 1121 With respect to the identity of the client, however, the court muddied the waters a bit, stating: "[I]nsurance defense counsel routinely and necessarily represent two clients: the insurer and the insured." It then suggested as well that "[tlhe loyalty to the insured may actually be paramount since that defense is the sole reason for the attorney's representation."26 Nevertheless, the court readily acknowledged that the relationship between the insured and insurance defense counsel is an attorney-client relationship.

Turning to the conflict itself, the court recognized that there are always "latent conflicts" between an insured and an insurer. However, it was the existence of an actual conflict over settlement that caused Lieberman's attorney to breach his duties to Dr. Lieberman. In that regard, the supreme court was even more critical than the lower court:

McDonough's proper course of action, though difficult, was clear. It was dictated by the paramount duty of singular loyalty and professional self-abnegation owed every client by an attorney. Where the insurer has refused to accede to the legitimate demand of the insured that the claim not be settled, McDonough, by continuing to represent Lieberman without informing him of the existence of this ethical dilemma, clearly violated his "duty to advise the client fully, frankly, and truthfully of all material and significant information."

... The attorney's professional dereliction here was two-fold. It first consisted of his failure to inform Lieberman of the clear conflict of interests and his subsequent failure either to withdraw from the case completely or to terminate his representation of either the insured or the insurer. It also consisted of McDonough's active participation thereafter in the actual settlement of the claim against the wishes of his client, the insured. This serious breach of duty constitutes actionable professional negligence or malpractice by the attorney.27

The supreme court then affirmed the judgment of the appellate division, but modified the determination of damages on re-trial.

On closer examination, it does not appear that Dr. Lieberman's attorney undertook any acts necessary to protect Dr. Lieberman's interests in the matter. With the knowledge that Dr. Lieberman did not want the matter settled, he failed to inform Dr. Lieberman of settlement discussions. Nor was the doctor informed of the potential for conflict of interest or that he might seek independent counsel. These failures directly caused liability to the client.

The Missouri case of Arana v. Koerner raises some of these same issues. That case also portends other claims that might lie against attorneys who represent insureds and are later sued for malpractice.21

In Arana, the doctor's medical malpractice carrier and his insurance defense counsel allegedly settled a medical malpractice claim without his knowledge or consent. Dr. Arana sued his attorneys for breach of contract, negligence, and willful conduct. The breach of contract claim was based on a policy provision which foreclosed the carrier from settling any claim against the doctor without his consent. With respect to a negligence count against the lawyers, Dr. Arana alleged that they breached their duties to him because they: (1) settled the claim without his consent; (2) placed the carrier's interest above his; (3) failed to adequately investigate the underlying medical malpractice action, and (4) failed to advise him of the conflicts occasioned by their representation of him and the carrier. The trial court initially dismissed Dr. Arana's complaint, but thereafter allowed him to file an amended complaint on the negligence claim. In addition to the allegations noted above, Dr. Arana alleged that the attorneys failed to afford him the opportunity to seek independent counsel and failed to seek an order protecting the confidentiality of the malpractice settlement. He also sought actual and punitive damages based on reckless indifference, but the trial court dismissed this claim. In the interim, Dr. Arana sued his insurance carrier, The Medical Protective Company ("Medical Protective"), for breach of contract and other claims arising from the settlement of the malpractice suit. That case was eventually settled.

The court of appeals first considered the attorneys' claims for dismissal because Dr. Arana gave Medical Protective a general release and because resolution of the claim against the carrier was resjudicata. In its analysis, the court found a lawyer-client relationship between Dr. Arana and the attorneys hired by the carrier:

It is upon this [attorney/client] relationship that Arana's claim against defendants is based, not upon the insurance policy or defendants' actions as agents of Medical Protective. The obligations of an attorney to his client "are in no way abridged by the fact that an insurer employs him to represent an insured." The attorney owes the insured the same obligation of good faith and fidelity as if the insured had retained the attorney personally and at his own expense. By allegedly ignoring Arana's instructions to litigate rather than settle the Elam suit, and by not informing plaintiff of their conflict of interests, defendants breached their duty to Arana as his attorney, not as agents of Medical Protective.29

The court of appeals also discussed Dr. Arana's claim that his attorneys' conduct was willful, wanton, and malicious. The court held that there is no cause of action for intentional legal malpractice, but noted that "[w]hen an attorney intentionally commits an act of misconduct in representing his or her client's interest, such as plaintiff has alleged, an action in tort may lie for breach of fiduciary duty or constructive fraud."" Dr. Arana was granted leave to amend his claim for intentional conduct to assert breach of fiduciary duty or constructive fraud.

With respect to Dr. Arana's claim for punitive damages, the court of appeals reversed the earlier dismissal, permitting a determination on the merits:

The amended petition states that defendants did not adequately investigate and evaluate the Elam suit, but instead defendants knowingly settled in order to favor their business relationship with Medical Protective over their duty to plaintiff. Arana further alleges that defendants knew that their "improper" settlement of the Elam suit would result in injury to plaintiff .... We find that Arana has sufficiently alleged, and should be allowed to try to prove, that defendants were not merely negligent in settling the Elam suit, but knew or had reason to know that their settlement of the Elam suit without Arana's consent or knowledge was highly likely to result in injury to Arana's reputation."

Thus, at least under Rogers, Lieberman, and Arana, an insurance defense attorney who fails to adequately advise the insured client about conflicts of interest breaches independent duties to the client. The attorney may be charged with negligence, breach of fiduciary duty, and constructive fraud, for which both compensatory and punitive damages can be awarded.

A different result obtained in Mitchum v. Hudgens." In that Alabama case, an obstetrician was sued by the parents of a baby born with multiple birth defects. Dr. Mitchum was covered by a medical malpractice liability policy that contained the following clause: "We'll defend any suit brought against you for damages covered under this agreement. We'll do this even if the suit is groundless or fraudulent. We have the right to investigate, negotiate and settle any suit or claim if we think that's appropriate."" Immediately prior to trial, the underlying medical malpractice suit was settled within the policy limits.

Dr. Mitchum sued the attorney hired by his carrier to defend the medical malpractice claim for fraud and negligence. The doctor alleged that his counsel's fraud and negligence in settling the medical malpractice suit without his consent caused him to lose the liability coverage then in effect and jeopardized his ability to obtain medical malpractice insurance from another insurer. Dr. Mitchum also alleged that the settlement damaged his professional reputation and resulted in a loss of business.

Dr. Mitchum's attorney moved for summary judgment on grounds that, as insurance defense counsel, he owed Dr. Mitchum no duty concerning settlement because the doctor's consent was not required under the insurance contact. Thus, nothing done by the attorney with respect to the settlement could have proximately caused Dr. Mitchum's damages.

In response, Dr. Mitchum argued that the obligations owed him by his attorney were separate and distinct from any obligations owed to him by the insurance company:

Dr. Mitchum argues that an attorney has no authority to settle a case on behalf of his client without that client's express consent and that the duty an attorney owes to his client with respect to settlement of a client's case is separate and distinct from any rights or obligations that arise under the contract between an insured and his liability insurance carrier.... Dr. Mitchum's position is that, regardless of the terms of his insurance contract with St. Paul, defendant Hudgens, as his attorney, was under a duty not to settle the Scott case without his express permission to do so."

The Supreme Court of Alabama approached the case in similar fashion to Rogers, Lieberman, and Arana, but reached a different result. The court adopted a dual representation rule, holding that when an insurer hires counsel to defend a claim brought against an insured, the attorney must represent both the insured and insurer in furthering the interests of each. As the court observed:

In the insured-insurer relationship ... the attorney has two clients whose primary, overlapping and common interest is the speedy and successful resolution of the claim and litigation. Conceptually, each member of the trio, attorney, client-insured, and client-insurer has corresponding rights and obligations founded largely on contract, and as to the attorney, by the Rules of Professional Conduct as well. The three parties may be viewed as a loose partnership, coalition or alliance directed toward a common goal, sharing a common purpose which lasts during the pendency of the claim or litigation against the insured.35

The court also discussed the fact that the relationship between the insured and its attorney is an attorney-client relationship; usually, an attorney cannot settle a client's case without the client's consent, and conflicts can arise with respect to settlement. The court agreed with the principles state in Rogers, but did not recognize a conflict of interest when Dr. Mitchum told his attorney he did not want to settle the case. As to this issue, the court stated:

... we believe that the insurance contract does affect the attorneyclient relationship with respect to settlement of an action brought against an insured. If the insured has contracted away the right to require his consent prior to a settlement of a claim against him, no real conflict of interest exists between the insured and the insurer, at least where the claim or settlement is within policy limits and there has been no reservation of rights by the insurer. 16

This situation occurred here because "Dr. Mitchum had no direct financial stake in the litigation: There was no reservation of rights by St. Paul, the Scotts' original claim, as well as their settlement offers, were within the limits of available insurance coverage, and there was no deductible.""

While the court was clear that insurance defense counsel must advise the insured of all developments in a case, including settlement negotiations, the failure to do so does not give rise to a cause of action for damages: We hold that if the insured objects to a settlement of a claim, the attorney is not thereby precluded from negotiating a settlement at the direction of the insurer where the insurer has, by the terms of the policy, the exclusive right to settle or compromise claims against its insured. We hold further that an attorney who does so cannot be held liable to the insured for legal malpractice for failing to obtain the consent of the insured to settle the claim, because the insured, by contracting away the right to require such consent, has thereby impliedly consented to the settlement of claims against him, within policy limits, by appointed counsel at the direction of the insurer. It is for this very reason that Hudgens could not have proximately caused any of the damage Dr. Mitchum has alleged that he suffered as a result of the settlement of the Scott suit without his consent."

Thus, under Mitchum, in the absence of excess exposure, personal exposure, or a reservation of rights, no damages can result from a settlement if the insured's consent is not required. It is difficult to reconcile Mitchum with Rogers, Lieberman, and Arana, especially given the clear mandate of the Rules of Professional Conduct. While no damages might be available in a civil suit for legal malpractice, counsel's ethical obligations exist separate and apart from civil liability. Perhaps a different result would have been reached in Mitchum were it a disciplinary proceeding.

III.

LIKELY CONFLICTS OF INTEREST

There is nothing inherently or ethically wrong when insureds are represented by insurance companies; this applies to the defense of medical malpractice cases as well as to other insurance defense work. Counsel must be mindful, however, of those areas in which conflicts can arise when defending these special cases in order to recognize the conflicts soon enough to protect the interests of the clients, whoever they are. While the interests of the client are paramount, counsel who are conflict-sensitive while defending physicians can also protect themselves against disqualification, malpractice, and professional discipline.

In the context of medical malpractice defense, there are three principal areas where potential conflicts of interest are likely to arise. The most likely area exists in the context of claim settlement. The other two situations typically occur when counsel represents more than one defendant, or there are claims outside the insured's coverage.

A. Settlement Conflicts

As long as the insured and insurer are in agreement about the settlement of a claim, there is no conflict of interest and counsel can continue to fully represent both interests. As the foregoing cases illustrate, however, it is not unusual for a medical malpractice insurer and an insured physician to differ about whether a particular claim should be settled. Regardless of the merits of a particular case, the carrier might have an economic interest in seeing a case settled, both to avoid exposure and to limit costs and fees. A physician-insured, however, may take a dim view of settling a perceptibly meritless claim, especially in light of state and federal reporting requirements. A doctor who feels that his or her skill has been personally attacked may seek vindication, even at the risk of an adverse judgment.

Conversely, a medical malpractice carrier might seek to try an individual claim either because it is defensible, because plaintiff wants too much in settlement, or because the carrier is simply cash-strapped and wants to delay the pay-out, even if the delay results in payment of a "premium" as part of the eventual settlement or judgment. At the same time, the defendant doctor might care little about the claims charged, but might be very concerned about trial time lost to his patients or practice. Such a doctor may insist that the case be settled, even though the case could be won, and he or she might have no contractual right to demand a settlement. In this case, defense counsel might find herself trying to convince the carrier to settle a case it thinks should be tried, simply to satisfy the insured's desires.

These inherent conflicts are compounded by the issue of consent. All medical malpractice insurance policies contain provisions that determine whether the carrier must obtain the insured's consent before entering into settlement of a claim within policy limits. Some policies require the physician's consent; some do not. Others, as earlier noted, might require consent only while the doctor continues to be an insured.

If the insured's consent is not required, a carrier who strongly favors settlement might attempt to settle the case without even informing the physician, much less obtaining permission. If consent is required, such a carrier might pressure the insured to provide it. Counsel also might be asked, implicitly or explicitly, to pressure the insured to settle, even though the insured has no such desire for legitimate reasons. Even worse, counsel might be asked to effect a settlement without informing the insured, even when counsel knows that the insured opposes a settlement. Similarly, a physician-insured who is opposed to settlement might withhold consent if he has the right to do so. Counsel is then forced to litigate a case in the face of the carrier's opposition.

In any of these instances, insurance defense counsel is caught equally between two conflicting interests and demands: those of the insurance carrier, who pays for and directs the defense of this case and perhaps others as well, and those of the defendant-insured, who is clearly a client and possessed of a personal stake in the outcome.

B. Multiple Representation

In the context of medical malpractice defense, it is not unusual to represent more than one defendant. This usually occurs when both the individual physician and the practice group are named. Sometimes, insurance defense counsel is asked to represent more than a single physician in any given case. A conflict of interest is unlikely in a lawsuit where the practice group is named to answer for the physician on a theory of respondeat superior or agency. Sometimes, however, the physician is named as a defendant because of his or her individual care, and the practice group is named to answer for an employee other than the physician whose failure is imputable to the group. This employee is usually a nurse, technologist, or administrator.

When medical malpractice defense counsel are asked to defend more than one physician, the co-defendants are usually partners. Occasionally, however, doctors who do not even practice together or in the same fields may be defended by the same attorney. Whether multiple individual physicians or a practice group are involved, there is no inherent conflict of interest, as long as all of the various interests remain the same. If counsel truly believes that there is no liability on the part of any one client, none of the individual clients can criticize the care given to the patient by any other defendant. All clients will agree on the approach used to defend the case; there is no conflict of interest, and the lawyer can continue to represent them all.

When counsel comes into possession of facts indicating that the clients have divergent interests regarding the defense or settlement of the case, however, there is a conflict of interest. Discovery might show that one doctor has different relative liability than a co-defendant. One physician might want to settle, and one might not. Although doctors generally support one another's care, even partners can disagree. Surgeons and internists do not always agree with the performance of emergency room personnel. Nurses and administrators employed by the practice group might become critical of the doctor, or the doctor might develop a problem with what a technologist did or did not do. In any of these situations, the lawyer now represents clients with conflicting interests.

C. Uncovered Claims

As in every insurance defense case, medical malpractice claims may fall outside the insured's coverage, for a variety of reasons. There is no conflict of interest as long as none of the facts or allegations indicate the existence of uncovered claims.

However, several types of uncovered claims conflicts are likely to occur in the context of medical malpractice defense. The list of uncovered claims in medical malpractice cases most commonly includes cases where the potential exists for excess damages. Excess damages are not uncommon given the catastrophic results that can occur from medical malpractice. Likewise, there is the possibility of intentional conduct and civil fraud claims in medical malpractice cases. And, since doctors must necessarily touch their patients in order to treat them, there are always potential battery claims. This reality is compounded by the requirement that patients must provide informed consent to be treated. Gynecologists, dentists, and psychiatrists are particularly susceptible to claims of sexual misconduct. Moreover, given the evolution of the health care industry over the last decade and the concomitant growth of federal market regulation, there is also the possibility that criminal claims involving insurance or Medicare[Medicaid fraud might arise.

If these uncovered claims do occur, defense counsel necessarily faces conflict between the interests of the carrier and those of the physician. Excess claims have a huge impact on settlement issues. Moreover, the carrier's economic interest is best served by defending and paying only covered claims, while asserting policy defenses as to each.

IV.

WHAT TO DO?

The first step in fostering the interests of physician-insureds is to be ethical and responsible, remaining sensitive to potential conflicts of interest. Beyond that, counsel must determine how best to avoid advocating opposite interests when conflicts do arise. Once counsel has determined that there might be conflicting interests in defending a medical malpractice suit, counsel should identify the various clients and their respective interests in order to fashion a solution.

A. Who is the client?

There is no question that the relationship between the insurance defense attorney and the insured is that of attorney and client. The relation is a fiduciary one, and the attorney has an ethical obligation to promote the client's interests. However, the carrier might also hold an attorney/client relationship with insurance defense counsel. When the interests of the insured and insurer diverge, counsel must first determine the nature of the relationship with the carrier.

Some courts have adopted a single representation rule, where only the insured is a client. Some, on the other hand, follow a dual representation rule, where both the carrier and the insured are clients.19 Some commentators have even observed that neither approach is appropriate in all cases.'

In some cases, the idea that insurance defense counsel has no attorneyclient relationship with the carrier makes sense. Insurance defense counsel are retained to prepare the case and seek a favorable resolution for the insured. Carriers are generally sophisticated and capable of representing their own interests in the underlying case and in relation to their insureds. Moreover, there may be instances where the relationship between carrier and defense counsel is a distant one, without any long-standing business relationship between the carrier and counsel. Counsel might even be retained at the specific request of the insured, but still be paid by the carrier. In these cases, it is easy to conclude that the insured's interests are paramount.

Given the economic realities of insurance defense litigation, however, dual representation is probably a better approach in most (though not all) cases. The carrier authorizes the choice of counsel, pays for the defense, and bears all costs of the litigation as well as any judgment or settlement. The insurance company thus has a significant financial stake in the outcome. Moreover, insurance defense counsel often has a long-standing relationship with the insurance carrier, and that relationship is a source of significant business income. Insurance defense counsel might even represent the carrier in direct actions, coverage opinions, and business and regulatory affairs. Therefore, it is disingenuous to suggest that no attorney-client relationship exists in these cases.

B. Analysis Under the Model Rules of Professional Conduct

Whether counsel has an attorney-client relationship with the carrier affects the nature of the obligations imposed by the Model Rules of Professional Conduct. If there is no attorney-client relationship with the carrier, diverging interests do not occasion conflicts of interest because counsel's ethical obligation is owed only to the insured. In such a case, Rule 1.8 requires that counsel accept no compensation from someone other than the client unless the client consents, the party paying for the representation does not interfere with the representation, and the client's confidences are protected.41 Thus, even in a single representation case, the insured must still be advised that his defense costs are being covered by another, and counsel must not let the carrier influence his legal advice to the insured. Indeed, in such a case, counsel must be guided by unf4iling loyalty to the insured. Rule 5.4 provides that, "A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. 1141

The Lawyers Manual on Professional Conduct adopts precisely this view in the context of insurance defense matters. It states that: "A lawyer hired or employed by an insurance company to represent an insured must represent the insured as his client with undivided loyalty.1141 The acceptance of payments from a non-client third-party for services rendered to a client is generally acceptable with client consent, and usually "cause[s] barely a swell on the sea of legal ethics."" Moreover, "[m]ost insurance representations involve thirdparty payments. They are acceptable under the ethics rules if there is client consent. 1141

The more difficult case occurs when both the carrier and the insured are clients. Here, the conflicts analysis must proceed under Rule 1.7, which provides in part:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.46

The Supreme Court of Mississippi described the proper approach for counsel under the circumstances:

Where the interests of the two parties are in some manner antagonistic to one another, before any lawyer is authorized to assume dual representation... he must first satisfy himself that there is no objective reason why he cannot, despite such divergence of interest, faithfully represent them both. If this cannot be met, the lawyer should not accept employment in the first place (or terminate it, if begun). Secondly, even if the lawyer reasonably (and from an objective point of view) believes he can faithfully represent dual parties with adverse interests, he still must fully explain all implications of the advantages as well as the risks of his representation to both parties, and assure himself that they both have given knowing and informed consent."

C. Resolution of Settlement Conflicts

Although they are the subject of the most extensive litigation, settlement conflicts are in many respects the easiest to remedy. If both the carrier and insured are clients, counsel is obligated to keep both fully and completely informed. Rule 1.4 of the Model Rules of Professional Conduct provides that, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."48 With respect to settlement specifically, the official comment to Rule 1.4 provides: "A lawyer who receives from opposing counsel an offer of settlement in a civil controversy... should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. 1141 Therefore, regardless of whether the insured has the contractual right to consent to settlement, insurance defense counsel must keep the insured informed and provide the insured an opportunity to take whatever action the insured deems necessary.

Once each client has been fully informed about the status of settlement, counsel should determine each client's views after providing an honest evaluation. If both clients agree, there is no conflict of interest. Even if one client wishes to settle and the other does not, it is unlikely that their interests will be so greatly diverse that the continued representation of either or both would be improper. In such a case, however, counsel must fully inform both the carrier and the insured of the conflict, giving them enough information to enable them to consent to counsel's continued representation of both. If both consent, counsel can continue providing unfettered advice to each on settlement. If one of the clients does not consent, counsel must withdraw from the case unless the scope of the representation can be limited to both clients' satisfaction.

Even if both clients consent to the continued representation, despite the conflict over settlement, insurance defense counsel should consider a limited representation of one of the clients. Again, however, counsel must fully explain the risks and benefits of doing so and provide each client with the opportunity to consent. Rule 1.2 of the Model Rules of Professional Conduct permits such limited representation: "A lawyer may limit the objectives of the representative if the client consents after consultation. "10 The official comment to Rule 1.2 mentions insurance defense specifically, and provides:

The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may be for a specifically defined purpose .... When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. 1151

In this case, the insured and insurer could agree to limit the scope of counsel's representation to discovery and preparation for trial, with both the carrier and the insured seeking independent counsel with respect to their rights and obligations on settlement. This view that insurance defense counsel has only a limited obligation to the carrier and insured was suggested by the Foster court: [I]n the event of a settlement offer within policy limits ... our view is that the attorney, after accurately informing each client of its terms, should advise the insured that he cannot offer him any legal advice as to the offer other than it is obviously to his monetary advantage that the offer be accepted, and that he should promptly inform the carrier what he wants the carrier to do regarding the offer. If there is any objective reason for the insured to have additional legal counseling, defense counsel should promptly advise him to go and seek it. Any doubt on this question should be resolved in favor of recommending independent advice.... As to the carrier, the attorney should make it clear that the company is presented with a conflict of interest, and has a legal duty to carefully protect the interest of the insured to the same extent as its own. Beyond this, [counsel] may very well have an ethical obligation to refrain from any recommendation, especially if his recommendation places his insured client in peril."

D. Resolution of Multiple Representation Conflicts

Conflicts of interest which arise from multiple representation are fairly common, but their resolution is not as clear as the resolution of settlement conflicts. The representation of multiple parties is prohibited under the Model Rules if the representation is directly adverse to another client under Rule 1.7(A), or if the representation may be materially limited by counsel's responsibilities to another client. If a conflict of interest does develop, the lawyer must at least withdraw from the representation of one of them. A withdrawal from representing one client under those circumstances, however, may also necessitate withdrawal from the representation of both." According to the Lawyers Manual on Professional Conduct's Practice Guide:

[T]he rules and law are clear that a lawyer may [represent two or more different clients in the same case or transaction] only under very limited circumstances, namely, where the lawyer reasonably believes the multiple representation will not adversely affect any one of the clients, and all the clients consent after full disclosure of the implications of the multiple representation. These limitations thus make it very unlikely, and perhaps impossible, for a lawyer to ever represent. . . multiple parties to the same transaction whose interests or positions are fundamentally antagonistic. But they do make it permissible for a lawyer to represent multiple parties whose interests are generally aligned.... However, should it become evident during the multiple representation that the lawyer cannot adequately represent the interests of each party, or should any party revoke consent, the lawyer must withdraw and may not thereafter represent one party against another on the same matter."

E. Resolution of Uncovered Claims Conflicts

Conflicts of interest that arise under excess claims are the easiest of the uncovered claims conflicts to avoid and resolve. When a demand is made in excess of policy limits, or when there is a likelihood that any judgment will exceed the insured's limits, both the insured and the insurer must be advised of the demand. They should also be provided with an honest and careful evaluation of the likelihood of an excess judgment. Counsel can continue to give both clients candid advice about trial strategy, discovery, witnesses, and the range of potential outcomes.

When the wishes or objectives of the carrier and the insured diverge, however, this conflict must be resolved under Rule 1.7. Each must be fully informed of the nature of the conflict and each must be given an opportunity to consent to the continued representation of both. If both clients consent, counsel can continue to advise each on all issues in the litigation. If either client does not consent, counsel must withdraw. Regardless, both the insured and the insurer should be advised to seek independent counsel on excess claims issues, and counsel should consider limiting the scope of the representation merely to covered claims.

By far, the most worrisome conflicts of interest are those conflicts that involve coverage issues or policy defenses, especially if the carrier is unaware of them. These conflicts occur when the plaintiff alleges, or counsel becomes aware of facts demonstrating some claims outside an insured's coverage. A suspicion or possibility of uncovered claims or policy defenses is not sufficient to create a conflict of interest, however. If the carrier is aware of the uncovered claim and is defending under a reservation of rights, counsel cannot represent both. In such a case, the attorney must represent only the interests of the insured, and the carrier should be so advised. Counsel also must explain the implications of the reservation of rights to the insured and advise the insured to seek independent counsel to protect his or her interests with respect to the uncovered claims. The insured also should be given the opportunity to consent to a representation limited merely to the covered claims.

If there is no reservation of rights, or if counsel knows of uncovered claims but they are not alleged by the plaintiff, counsel's position is extremely precarious. On one side, counsel has a client whose primary interest is staying inside the coverage and being fully defended and indemnified. On the other side, counsel represents a client who might escape liability completely if the claim is not covered. Counsel certainly cannot advise the carrier that the claim is not covered, nor can counsel reveal any confidences of the insured. Of equal import, however, counsel cannot hide from the carrier-client facts that may trigger the carrier's defenses against the insured.

In this conflict, counsel cannot readily withdraw from representing the insured without tipping off the carrier. Nor can the attorney in good conscience continue to represent only the insured, knowing full well that the carrier might have valid policy defenses. In such a case, insurance defense counsel likely will withdraw from the representation of both clients. Counsel cannot help the carrier-client without severely damaging the insured, but counsel cannot protect the insured's interests without doing a grave disservice to the insurance company with whom counsel has a long-standing relationship. Perhaps the only way to avoid such a conflict is to limit the scope of the carrier's representation at the outset of the case. Thus, counsel should agree with the carrier that he or she does not and will not represent the insurance company with respect to any uncovered claims or policy defenses.

V.

CONCLUSION

Unfortunately, there are no easy answers to the conflict of interest questions that often surface in the defense of medical malpractice claims. As the Mississippi Supreme Court stated in Foster: "IT]he ethical dilemma[s] thus imposed upon the carrier-employed defense attorney would tax Socrates, and no decision or authority we have studied furnishes a completely satisfactory answer."55 However, the careful insurance-defense lawyer will at least be aware of likely conflicts as they develop. He or she also will have some understanding about how to handle such conflicts in the best interests of each client.

'See, e.g., Douglas R. Richmond, Emerging Cmiflicts of Interest in Insurance Dee nse Practice,32ToRl-&INS.L.J.69(1996)@ Karon 0. Bowdre, CoqflictsofInterestBetween Insurerand Insured: Ethical Trapsfor the Unsuspecting Defense Counsel, 17 Am. J. TRIAL AD\OC. 101 (1993): Charles Silver and Kent Syverud, The Professional Responsibilities of Insurance Dejense L1v.ers, 45 DUKE L.J. 255 (1995); Douglas R. Richmond. Lost in the Eternal Triangle of Insurance Dejense Ethics. 9 GEo. J. LEGAL ETHics 475 (1996); Douglas R. Richmond, Walking A Tightrope: The Tripartite Relationship Betiveen Insurer, Insured, and Insurance Defense Counsel, 73 NEB. L. RE%. 265 (1994); Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured", 72 TEX. L. REV. 1583 (1994). This list is by no means exhaustive.

2SOMe of these issues are discussed in Richard H. Underwood, The Doctor and His Lawyer: Conflicts of Interest, 30 U. KAN. L. REV. 385 (1982) and Francis M. Hanna, When Medical Malpractice Becomes Legal Malpractice: Some of the Dangers Inherent in Representing Professional Malpractice Defendants, 12 Miss. C. L. REv. 73 (Fall 1991). See also Gregory G. Sarno, Annotation. Legal Malpractice in Handling or Defending Medical Malpractice Claim, 78 A.L.R.4th 725 (1990).

3392 N.E.2d 1365 (111. App. Ct. 1979).

4Id. at 1369 (ellipse in original) (emphasis added).

5See id. at 1370 (citing Allstate Ins. Co. v. Keller, 149 N.E.2d 482 (111. App. Ct. 1958): Maryland Cas. Co. v. Peppers, 355 N.E.2d 24 (111. 1976); American Bar Association Ethics Opinion No. 1822; Lysick v. Walcom, 65 Cal. Rptr. 406 (Ct. App. 1968); Henke v. Iowa Mut. Cas. Co., 87 N.W.2d 920 (Iowa 1958); Ronald E. Mallen, The Fine Line Between Professional Responsibility and Malpractice, 45 INS. COUNS. J. 244 (1978)).

'Some jurisdictions follow a single representation rule, under which the attorney's ethical obligations are owed to the insured, not the carrier. See infra Part IV, Who is the Client?

'Rogers, 392 N.E.2d at 1370-71. See also Hartford Accid, & Indem. Co. v. Foster, 528 So. 2d 255, 268 (Miss. 1988) ("A contract which authorizes any dilution of the ethical obligation of an attorney to the client would be void as against public policy").

'Rogers, 392 N.E.2d at 1371 (citations omitted).

'Id. (citing Lysick v. Walcom, 65 Cal. Rptr. 406 (Ct. App. 1968)).

'Old. at 1372 (citations omitted). I'M (citation omitted).

12 Id.

13 Id at 1373

14 Rogers v. Robson Masters, Rayn Brumund & Belom 407 N.E.2d 47 (Ill. 1980)

15 Id at 49

16 Id

"But see Sharpe v. Howell, 629 So. 2d 314 (Fla. Dist. Ct. App. 1993). In Howell, a legal malpractice action with allegations of professional negligence and conflict of interest, as a matter of law there was no causal connection between counsel's conduct and alleged canceled insurance, where settlement of the claim and cancellation of insurance were within the carrier's contractual authority. Id. at 314-15.

"Lieberman v. Employers Ins. of Wausau, 407 A.2d 1256 (N.J. Super. Ct. App. Div. 1979).

19M. at 1260. 2DId. at 1261,

"Id. (citing Newcomb v. Meiss, 116 N.W.2d 593, 598 (Minn. 1962); Jackson v. Trapier, 247 N.Y.S.2d 315,316 (Sup. CL 1964)).

22M. (citing Imperiali v. Pica, 156 N.E.2d 44, 47 (Mass. 1959)).

"Id. (citations omitted).

14See Lieberman v. Employers Ins. of Wausau, 419 A.2d 417 (N.J. 1980). 151d. at 423.

261d. at 424 (quoting Ronald E. Mallen, Insurance Counsel: The Fine Line Between Professional Responsibility and Malpractice, 45 INs. CouNs. J. 244-45 (1978)).

"Id. at 425 (quoting In re Loring, 374 A.2d 466, 470 (N.J. 1977)).

2'Arana v. Koerner, 735 S.W.2d 729 (Mo. Ct. App. 1987), partially overruled on other grounds, Klemme v. Best, 941 S.W.2d 493, 496 (Mo. 1987) ("Proof of an attorney's intent is not required to establish breach of fiduciary duty or constructive fraud").

29Arana, 735 SW.2d at 733 (quoting Betts v. Allstate Ins. Co., 201 Cal. Rptr, 528, 545 (Ct. App. 1984) (citing Lieberman v. Employers Ins. of Wausau, 419 A.2d 417, 424-25 (N.J. 1980); Rogers v. Robson, Masters, Ryan, Brumund, & Belom, 407 N.E.2d 47 (111. 1980)).

"Id. at 735 (citations omitted).

"Id. at 736-37.

"Mitchum v. Hudgens, 533 So. 2d 194 (Ala. 1988). 33"Id. at 196 (emphasis omitted).

34Id. at 196-97.

-'5Id- (quOting America Mut. LiW* Ins. Co. V. Supc Court, 113 Cal. Rptr- 561, 571 (Ct. App. 1974)).

36 Id. at 201. 371& at 202.

IId. at 202. See also Sharpe v. Howell, 629 So. 2d 314 (Fla. DisL Ct. App. 1993),

39See generally Scott L. Machanic, Insurance Defense Counsel: Who is the Client?, 43 FED'N INS. & CORP. COUNS. Q. 45 (1992).

4'See Charles Silver and Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 DUKE L. J. 255, 273-80 (1995) (suggesting that blind adherence to either rule is inappropriate and should be determined on a case by case basis by reference to the retainer agreement).

"Model Rules of Professional Conduct, Rule 1.9(f) (1987). "Model Rules of Professional Conduct, Rule 5.4(c) (1995).

4-Laws. Man. on Prof. Conduct 51:309 (ABA/BNA) (1993) (citing Philadelphia Ethics Opinion 86-108 (1987); Tennessee Ethics Opinion 93-F-132 (1993); Jeffrey S. Stem, Dilemmas for Insurance Counsel - Coping with Conflicts of Interest, 65 MASS. L. REv. 127 (1980); C.R. Carpenter and Wayne A. Williamson, Open Forum - Conflict of Interest Problems in Insurance Practice, 37 INS. COUNS. J. 497 (1970); Hawkins v. State Bar, 591 P.2d 524 (Cal. 1979); Wong v. Fong, 593 P.2d 386 (Haw. 1979); Shelby Mut. Ins. Co. v. Kleman, 255 NW.2d 231 (Minn. 1977).

"Laws. Man. on Prof. Conduct 51:901 (ABA/BNA) (1995). 45 Laws. Man. on Prof. Conduct 51:903 (ABA/BNA) (1995). 46 Model Rules of Professional Conduct, Rule 1.7(b) (1987).

'Hartford Accident & Indem. Co. v. Foster, 528 So. 2d 255, 268 (Miss. 1988). 'Model Rules of Professional Conduct, Rule 1.4(b) (1996).

49Id. at Rule 1.4 cmt.

"Model Rules of Professional Conduct, Rule 1.2(c) (1996). "Id at Rule 1.2 cmt.

"Hartford Acc & Indem. Co., 528 So. 2d at 272-73 (footnote obaitted)(citation omitted).

"See, e.g,, Laws. Man. on Prof. Conduct 51:303 (ABA/BNA) (1993) (citing Picker Int'l v. Varian Assoc., 869 F.2d 578 (Fed. Cir. 1989); Harte Biltmore Ltd. v. First Pennsylvania Bank, 655 F. Supp. 419 (S.D. Fla. 1997); H. G. Galimore, Inc. v. Abdula, 652 F. Supp.. 437 (N.D. 111. 1987)).

541-aws. Man, on Prof. Conduct 5:301(ABA/BNA) (1993).

"Hartford Accident. & Indem. Co., 529 So. 2d at 273.

JOHN DAVID HOOVER J. ScoTT FANZINI

John David Hoover is a partner at the Indianapolis, Indiana law firm of Johnson Smith LLP. He concentrates his practice in the defense of professionals, officers and directors. Mr. Hoover received his J.D. degree, cum laude, from Indiana University School of Law at Indianapolis in 1980. He actively practices in the State of Indiana, the Southern and Northern Districts of the United States District Court, the United States Court of Appeals for the Seventh Circuit, and the United States Supreme Court. Mr. Hoover is a member of the Federation of Insurance & Corporate Counsel.

J. Scott Fanzini is an associate with Johnson Smith LLP. He is an alumnus ofButler University, having received his Bachelor of Science degree, with honors in economics in 1985. He graduated magna cum laude from the Indiana University School of Law, Indianapolis, where he was editor of the INDiANA LAw REviEw.

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