A Lawyer is not a Super Adjuster
Barry Zalma
Aug 9, 2023
Read the full article at https://lnkd.in/gUuydwgC and see the full video at https://lnkd.in/gDfjAr75 and at https://lnkd.in/g23T5k8c and at https://zalma.com/blog plus more than 4550 posts.
NY USDC Eliminates Insurer’s Attorney Client Privilege
I became a lawyer in 1972. Before that I was an insurance adjuster and investigator. Since 1972 I have never been, nor acted as, an adjuster or an investigator. Of course, part of being a lawyer requires some investigation because failing to do so would be a breach of the fiduciary duty of a lawyer to his or her client.
I learned immediately upon entering law school, and later in the practice of law, that an attorney’s failure to investigate potential defenses constitutes a denial of effective assistance of counsel. [Owsley v. Peyton, 368 F.2d 1002, 1003 (4th Cir. 1966); Kibert v. Peyton, 383 F.2d 566, 569 (4th Cir. 1967); McLaughlin v. Royster, 346 F.Supp. 297 (E.D.Va.1972); Cf. Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966); Wood v. Zahradnick, 430 F.Supp. 107 (E.D. Va. 1977). In fact, as the Supreme Court of Oregon stated: “To fulfill the role assigned to defense counsel under our adversarial system of criminal justice, a lawyer must investigate the facts and inform himself or herself with respect to the law ‘to the extent appropriate to the nature and complexity of the case[.]’ Krummacher v. Gierloff, 290 Or. 867, 875, 627 P.2d 458 (1981),” [Burdge v. Palmateer, 338 Or. 490, 112 P.3d 320 (Or. 2005)]
The attorney-client privilege protects the client from disclosure of private communications with counsel. Communications from a lawyer to his client conveying legal advice and giving information to the lawyer to enable him to give sound and informed advice is always privileged. [Upjohn Co. v. United States, 449 U.S. 383, 390 (1981); M&T Bank Corp. v. State Nat’l Ins. Co. (W.D. N.Y. 2020). The investigation conducted by a lawyer as part of his or her duty to properly represent a client is the work of a lawyer and is, and should always be, protected by the attorney client privilege and the work product protection.
Some Privileges are More Equal Than Others
With regard to insurance matters some courts have ignored the duties owed by a lawyer to the client and have eliminated the attorney client privilege and the work product protection for most documents created by those lawyers who provide advice to insurers. For most of the more than 45 years I have been involved providing legal advice to insurers I have been accused of being a “super adjuster” rather than a lawyer to allow insureds to gain an advantage against an insurer, and gain access to the private legal advice given to the represented insurer. The attorney client privilege belongs to the client, not the lawyer, and can be waived by the client but not eliminated.
In Cadaret Grant & Co. v. Great American Insurance Company, No. CV 21-6665 (GRB)(AYS), United States District Court, E.D. New York (July 25, 2023) the USDC decided to compel an insurer to produce documents that include the legal advice provided by a lawyer to an insurer since it concluded that the lawyer involved with the requested documents was acting as an investigator or adjuster rather than as a lawyer.
The documents at issue revealed that as early as April of 2019, GAIC had retained outside counsel Graziano to discuss claims under the Bond. The USDC outlined the issue before it as follows: “New York courts are often faced with deciding claims of attorney-client privilege in the context of insurance coverage disputes. Central to such privilege decisions is the issue of whether outside counsel is performing the role of a claims investigator, or that of an attorney offering legal advice. Documents reflecting claims investigation activities are subject to discovery even if those activities were performed by an attorney.”
The Work Product Doctrine
The work product protection is the lawyer’s, unlike the attorney client privilege that applies to the client. Protection does not exist for documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation.
The Decision
The Cadaret Grant & Co court refused to provide the attorney client privilege to documents created by the lawyer except a document that showed the lawyer, Graziano’s, legal analysis and opinions. It contains legal advice and the court concluded is therefore primarily legal, rather than investigatory in nature. It, and only it, was determined to covered by the attorney client privilege. The court was wrong and should be reversed if the insurer is able to seek appellate relief.
ZALMA OPINION
A lawyer giving legal advice to an insurer faced with a claim is required, to properly serve his or her client, to conduct a thorough legal investigation into the issues presented by the insurer for assistance and legal advice. That advice can include many different things, including suggestions for continuing investigation by the insurer, but none changes the lawyer into an investigator or a claims adjuster. Had counsel sat silent and only wrote a coverage opinion without using his or her skill, legal knowledge and training to obtain, directly or by asking for additional information, to prepare the coverage opinion that the court found was privileged but all other documents were not, is in error.
The Cadaret opinion is an insult to the lawyer who acted as a coverage lawyer. The lawyer needed to obtain sufficient information from the insurer client so that he or she could provide a thorough, well-reasoned and researched coverage opinion that was not within the ken of the insurance adjuster who had enough knowledge and experience to recognize that he or she needed the assistance and legal analysis of an experienced insurance coverage lawyer. The “super adjuster” theory that no investigative work of a lawyer can be part of the lawyer’s analysis that is protected by the attorney client privilege and/or the work product protection is simply in error and a false conclusion.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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The Professional Claims Handler
Post 5218
Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-8-barry-zalma-esq-cfe-zdwsc, see the full video at https://rumble.com/v70zl4s-the-zalma-philosophy-of-claims-handling-part-8.html and at https://youtu.be/MIYcF71ffRQ, and at https://zalma.com/blog plus more than 5200 posts.
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An Excellence in Claims Handling program begins with a statement in the insurer’s claims manual or statement of professionalism that it is dedicated to providing excellence in claims handling to every insured who presents a claim.
The excellence in claims handling program should include, at a minimum:
A series of lectures supported by text materials explaining:
A definition of insurance.
How to read and understand an insurance policy.
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Read the full article at https://www.linkedin.com/pulse/zalma-philosophy-claims-handling-part-5-barry-zalma-esq-cfe-jde8c, see the full video at https://rumble.com/v70q4x8-the-zalma-philosophy-of-claims-handling-part-5.html and at https://youtu.be/6b9tZQsEkB4, and at https://zalma.com/blog plus more than 5200 posts.
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The Insurance claims professional should be a person who:
1. Can read and understand the insurance policies issued by the insurer.
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The Professional Claims Handler
Post 5219
Posted on October 31, 2025 by Barry Zalma
An Insurance claims professionals should be a person who:
Can read and understand the insurance policies issued by the insurer.
Understands the promises made by the policy.
Understand their obligation, as an insurer’s claims staff, to fulfill the promises made.
Are competent investigators.
Have empathy and recognize the difference between empathy and sympathy.
Understand medicine relating to traumatic injuries and are sufficiently versed in tort law to deal with lawyers as equals.
Understand how to repair damage to real and personal property and the value of the repairs or the property.
Understand how to negotiate a fair and reasonable settlement with the insured that is fair and reasonable to both the insured and the insurer.
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My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
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The Insurance Industry Needs to Implement Excellence in Claims Handling or Fail
Post 5210
This is a change from my normal blog postings. It is my attempt. in more than one post, to explain the need for professional claims representatives who comply with the basic custom and practice of the insurance industry. This statement of my philosophy on claims handling starts with my history as a claims adjuster, insurance defense and coverage lawyer and insurance claims handling expert.
My Training to be an Insurance Claims Adjuster
When I was discharged from the US Army in 1967 I was hired as an insurance adjuster trainee by a professional and well respected insurance company. The insurer took a chance on me because I had been an Army Intelligence Investigator for my three years in the military and could use that training and experience to be a basis to become a professional insurance adjuster.
I was initially sat at a desk reading a text-book on insurance ...
