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Industry Insights

Goyal: Claim Partners and Risking Attorney-Client Privilege

  • State: Illinois

Disposing effectively of Illinois workers’ compensation claims often requires numerous actors. 

Surbhi Saraswat Goyal

Surbhi Saraswat Goyal

Vendors of all stripes, investigators, nurses and brokers, just to name a few, have important roles to play. They relay the status of an injured worker’s recovery; secure corroborating medical records to facilitate consideration of benefits; flag non-compliance with treatment recommendations; test petitioners' actual functionality based on the incapacity the claims; and break down and convey technical legal procedures to the employer.

However, it is important to remember that communications with these persons may well not be protected by attorney-client privilege and are at risk for discovery by the opposing party.

Attorney-client privilege is the backbone of the legal profession. It encourages open and frank communication between the client and his attorney without fear that others will learn of the shared confidence. It also aids the attorney in providing complete and competent legal advice, and developing legal strategy.

The privilege extends to communications between the attorney and the insured, but it is limited to contact between counsel and the insured’s “control group.” The control group consists of top management personnel who have the actual authority to make the final decision and any employees who directly advise the top management, and upon whose opinions and advice the decision-makers rely.

The privilege also extends to the insurer if the insured may properly assume that the communication made to the insurer, in its capacity as an agent, was for the dominant purpose of sharing it with an attorney for the protection of the insured’s interests.

While privilege is in play on a daily basis, not all communication with your attorney is covered. Illinois courts have defined the attorney-client privilege narrowly and apply it only when certain requirements are met.

Primarily, the communication must seek or render legal advice and must be kept confidential by both the attorney and the client. However, the burden of proving that a communication should be protected by the privilege is on the party asserting the privilege.

Therefore, the onus is on the attorney and the client to protect their communications. To help you better understand how easily privilege may be lost, highlighted below are some circumstances posing risks:

  • The communication must be kept confidential. As the court requires that the communication be confidential, sharing it with a third party, not within the control group, can lead to loss of attorney-client privilege. A common example of this is when an insurer or insured may communicate with the attorney while also copying a vendor.
  • The communication must seek or render legal advice. A communication with a vendor is not protected simply because the attorney was copied. Recall that the court requires that the communication seek or render legal advice for it to be protected under the attorney-client privilege. Similarly, a client may waive privilege by inviting an investigator, nurse case manager or other third party, outside of the control group, to a claim review, where litigation strategy may be discussed and developed. Often times, many business decisions or strategic planning are undertaken by the insured with the advice of counsel. Please note that only legal advice is protected by the privilege.

Communication between your claim partners may be in person, by correspondence, email or telephone. However, you must consider carefully when to involve them in contacts, depending on the sensitive nature of their contents.

Surbhi Saraswat Goyal is a partner with workers' compensation defense, civil litigation and insurance law firm Brady, Connolly & Masuda P.C. in Chicago.

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