united-kingdom duty-of-care
When a lawyer is paid by an insurance company and representing an individual to whom do they have a duty to act in best interests of?
<p>As I understand it, with regards to civil claims handled through insurance there are two duties involved:</p>
<ul>
<li>An insurance company has a duty to defend their client, <a href="https://en.wikipedia.org/wiki/Duty_to_defend" rel="nofollow noreferrer">in the US</a> this seems to be inherent in insurance law, <a href="https://www.lexology.com/library/detail.aspx?g=867b35d3-e479-4224-b0dd-e1459758f62d" rel="nofollow noreferrer">in the UK</a> it seems to depend on the insurance covering legal fees (but most do, assume that it is so here)</li>
<li>A lawyer has a duty to act in their client's best interests</li>
</ul>
<p>If a lawyer is acting in such a case where the defendant is an individual, they are likely to be paid by the insurance company and representing the individual.  In whose best interest are they required to act?</p>
<p>The specific case in question is the result of an car accident, where the insurance company has not made an offer than it is possible for the claimant to accept, has not even acknowledged any offers made by the claimant and I THINK has advised the defendant that they are not required to provide their address to the claimant, even though <a href="https://www.gov.uk/vehicle-insurance/if-youre-in-an-accident" rel="nofollow noreferrer">it is a legal requirement for them to do so</a>.  I think that if the claimant initiates legal action they shall be required to declare this lack of provision of address, which I suspect will be very much not in the interests of the defendant, possibly even involving criminal charges.</p>

<p>Generally the insurer appoints a solicitor from its panel and instructs the solicitor to defend the claim in the name of the insured on <em>the basis of the insurance policy</em>.</p>
<p>In the circumstances the solicitor has two clients, the insured and the insurer - a 'joint retainer'.</p>
<p>The solicitor must not behave as if there is a 'primary client' or preferred client. A conflict of interest may arise. The solicitor has a duty not to act in the matter if there is a conflict of interest or a significant risk of one. The solicitor should ensure the insurer is aware of its duty to have regard to its own interests and the insured's interests.</p>
<p>If the solicitor gets this wrong the insured may have a cause of action against the solicitor for breach of contract; the solicitor may face disciplinary proceedings for breaching the solicitor's Code of Conduct; a complaint could be addressed to the Legal Ombudsman (which may award compensation).</p>

<h2>There is no conflict</h2>
<p>The insurer has a right of subrogation - a right to stand in the shoes of the insured. This is a common law principle but is almost always a contractural provision of the policy.</p>
<p>That means that once the insurer has agreed to indemnify the insured, the insurer has the absolute right to decide how to resolve the case. Since they are on the hook for the money, they get to call the shots. They can decide to settle or to fight and, if they fight, they can decide the strategy.</p>
<p>The lawyer works for the insurer and does not work for the insured. The insured’s only involvement is to provide information/testimony as and when requested. Normal practice is for the insured to forward any correspondence they receive to their insurer.</p>
<p>If the insured is concerned that the insurer is not complying with the policy, they need to hire their own lawyer to resolve that dispute.</p>
