The attorney-client privilege is one of the most well-recognized concepts of legal practice, with high-profile references to the doctrine appearing in movies, books, and news articles. On the surface, the boundaries of the attorney-client privilege appear relatively simple. The privilege serves as a shield to protect private communications concerning legal advice between a client and an attorney. In practice, the scope of the privilege and its application is not always so straightforward.
In the context of the insured-insurer relationship, disputes over the scope of the attorney-client privilege, and to a lesser extent the attorney work-product privilege, regularly arise in two scenarios. In the first scenario, an insurer seeks to require its insured to disclose communications exchanged between the insured and its counsel concerning a claim. In the second scenario, a third-party litigant seeks disclosure of privileged communications shared between an insured and an insurer, asserting that the insured waived the privilege when it disclosed the communications to the insurer.
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