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An opinion issued by the Massachusetts Bar Association (MBA) gives lawyers ammunition when insurance companies footing legal bills question how much money is being spent to pursue their case. Opinion 2000-4 says that attorneys may not submit invoices containing confidential client information to outside auditors — commonly hired by insurance companies to review legal bills — without the client’s permission. The opinion also undercuts insurance firms’ widespread insistence that paralegals may be used for many tasks — a subject that rankles insurance defense lawyers nationwide. “This is a very hot issue throughout the country,” said Harvard Law School Professor Andrew L. Kaufman, who chairs the MBA Ethics Committee, which wrote the opinions. “It gets right to how an attorney runs his practice. The insurance companies may be requiring people to do jobs that the lawyers feel they aren’t capable of doing.” Several in-house counsel for Massachusetts-based insurance firms were contacted, but none was available for comment by deadline. Opinion 2000-4 focuses on the use of lower-cost paralegal work for certain duties — such as the drafting of deposition notices. It might also apply to other instances in which lawyers feel their independence on a case is being compromised by the insurer’s attempt to minimize legal costs, Kaufman said. The opinion says that a lawyer “is obliged to make an independent, case-by-case determination whether aspects of the insurer’s litigation guidelines,” which mandate the use of paralegals for certain tasks, are ethically permissible under the Massachusetts Rules of Professional Conduct. NOT A LOT OF AMBIGUITY “The rules of professional conduct are in place and there’s not a lot of ambiguity there,” said Brian P. Voke, president of the Massachusetts Defense Lawyers Association. “If someone does attempt to restrict the defense of the insured, the lawyer is legally bound to represent the interest of the client. “Lawyers want ethical opinions like this. If an insurance company questions how they are handling a case, then they can send this opinion off to them and say, ‘I’m ethically bound to do this.’” The opinion is one of three published by the bar after its House of Delegates approved them on Sept. 13. (They are posted on the Mass Report’s Web site, at www.law.com/mass.) Attorneys who pose ethical questions for the MBA Ethics Committee remain anonymous, Kaufman said. The opinions are informal, he said, but judges have sometimes cited them in decisions. In Opinion 2000-4, the example cited by the Ethics Committee points out the dilemma faced by an attorney when it comes to deposition notices. “An insurer’s litigation guidelines may mandate that all deposition notices be drafted by paralegals, although the precise content of some deposition notices may require significant, substantive and strategic legal input,” it says. “If the lawyer has a reasonable basis to believe � [it is] too complicated a task for a paralegal to perform competently, then the lawyer’s ethical obligations compel the lawyer not to delegate that task.” DEPOSITIONS AND WITNESSES The same reasoning could apply to insurance company limits on how many depositions may be taken, or the number of witnesses sought, or requests that certain case-related phone calls be made by a legal secretary or paralegal, rather than the lawyer, said Voke, who practices at Boston’s Campbell, Campbell & Edwards. In a worst-case scenario, a lawyer may have to withdraw from a case he feels is compromised by cost-cutting measures imposed by insurers. “The lawyer has an obligation to the clients and to the insurance companies and to the rules of professional conduct, but above all else, attorneys have an obligation to comply with the rules of conduct,” Voke said, adding that he and other attorneys often ask for — and sometimes are granted — exceptions to insurers’ litigation guidelines. “Some insurers are trying to rectify the situation. Some have eliminated outside auditors who question every expense,” he said. “But when they try to hold lawyers to the guidelines in every case, that’s not appropriate.” Another ethics ruling, Opinion 2000-3, also concerned client confidentiality. It says that attorneys cannot report clients to credit-reporting agencies to force payment when they are delinquent in paying their legal bills. The MBA committee found that a client’s indebtedness must be considered confidential and may only be disclosed with the client’s consent. Opinion 2000-2 involved reimbursement to an attorney asked to testify against a former client. The committee said that an attorney may receive standard witness fees and costs paid to any lay witness but may not claim payments for expenses, lost time or work done in connection with the appearance at a deposition or trial of a former client.

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