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Opinion 687

Question Presented

1. Under the Texas Disciplinary Rules of Professional Conduct, must a staff lawyer employed by an insurance company to defend its insureds comply with the company’s guidelines regarding the defense of such cases?

2. What are a lawyer’s obligations if an insurance company cuts a staff lawyer’s support staff?

An insurance company employs staff lawyers and support staff to defend its insureds in personal injury cases. The insurance company requires staff lawyers to follow the company’s guidelines in defending lawsuits against its insureds. One guideline requires that staff lawyers obtain permission before retaining expert witnesses and notifies staff lawyers that the company requires 30 days to decide whether to approve the hiring of experts. The staff lawyers are concerned because, for example, when plaintiffs’ counsel file medical billing affidavits, the expenses identified in those affidavits are deemed reasonable and necessary unless a defendant files a controverting affidavit within a certain period of time, usually 30 days.  This means the staff lawyers must find, retain, provide medical records to, and obtain controverting affidavits from an expert within 30 days after a billing affidavit is filed. If staff lawyers must wait up to 30 days to obtain permission to hire an expert to contest the billing affidavit, the deadline for filing a controverting affidavit may have already passed.

In addition, the insurance company cut support staff to reduce costs. The staff lawyers believe the existing support staff cannot keep up with the lawyers’ workload. This will require the lawyers to spend considerably more time performing administrative tasks, which will take time away from performing lawyer-specific tasks.

Bluebook Citation

Tex. Comm. On Professional Ethics, Op. 687 (2020)