Exercise independent judgment.

• Position: Part 6 - Manual for lawyers representing insured defendants

Be a Lawyer

In keeping with the view that lawyers are first and foremost advisors, every lawyer owes every client a duty to exercise independent professional judgment for the client's benefit. This is true both in third-party payer situations and when the client is personally responsible for the bills.

The duty to exercise independent professional judgment requires that a lawyer be free to consider and recommend any available strategy for achieving an identified goal. In the context of insurance defense, this means that, in theory, a lawyer must be able to consider and recommend any lawful strategy for minimizing the amount a liability claimant recovers by way of a judgment or settlement. In practice, of course, the pros and cons of many strategies are sufficiently patent that a lawyer need not waste time on them. One can be free to follow the road less traveled yet have ample reasons against taking it.

Few malpractice cases against defense lawyers have been won by proving that the lawyer violated the duty to exercise independent professional judgment. Yet, a large number of advisory opinions and judicial opinions focus on this duty. The main concern of these is that defense lawyers may violate the duty by accepting litigation management guidelines and other budgetary restrictions imposed by insurers. Consider what the Supreme Court of Kentucky wrote about flat fees in American Insurance Ass'n v. Kentucky State Bar, 917 S.W.2d 568, 572 (Ky. 1996):

[A] set fee arrangement enables the insurer to constrain counsel for the insured by ... limiting the defense budget ... [T]he pressures exerted by the insurer through the set fee interferes with the exercise of the attorney's independent professional judgment. Clearly, this is erroneous reasoning. Budgetary restrictions and other payment terms cannot interfere with a lawyer's independence of professional judgment because they do not limit the content or nature of the advice that...