Insurers, Attorney-Client Privilege, and the Unwitting Corporate Representative

A lawyer defending a deposition is well-advised to get it squared away, in advance, as to whether the deponent is a client. It bodes ill for an attorney-client privilege claim when the “client” has denied under oath that she is represented by the attorney.

Under such circumstances, it should come as no great surprise that the Minnesota Supreme Court found no attorney-client privilege in communications between Karen Abbott, widow of the principal of Paul W. Abbott Co. (“PWA”), an asbestos litigation defendant, and counsel for the insurer defending claims brought against PWA. Not only had Ms. Abbott affirmatively stated that the PWA lawyer (that is, counsel hired by the insurer) was not her lawyer; the insurer had actually affirmatively advised her earlier in writing to “consult with your own attorney…”

Chief Judge Magnuson concurred with the decision (which affirmed the Court of Appeal’s denial of a petition for writ of prohibition to bar testimony in regard to communications between PWA counsel and Ms. Abbott) writing separately to emphasize that this decision did nothing to challenge Minnesota law that “a lawyer retained by an insurance company is the lawyer for the insured.”

The Chief Judge also weighed in to emphasize that folks should not take the decision as a license to depose opposing trial counsel.