If you have been sued for defamation and if you have an applicable insurance policy that may cover the claim, you may be able to get your insurance company to pay for a lawyer of your choosing. Why is this important? Because insurance companies regularly work with “panel” defense lawyers who are generalists. These lawyers handle all different kinds of cases. They rarely have substantial experience handling internet defamation cases or anti-SLAPP motions. The harsh reality is that this is a complicated area of law. You want an experienced attorney–not a jack of all trades. Even better for the insurance companies is that panel lawyers have a strong incentive to please the insurance company because the company gives them a lot of recurring business. In short, even if the panel attorney is experienced, there is a possibility he or she may be looking after the insurance company’s interest–and not your own. So how do you convince the insurance company to let you hire who you want?
You need to show the insurance company that there is a “conflict of interest” between you and the company. It seems like it should be a simple legal concept, but the law is rarely straightforward. The key case in this area is San Diego Navy Fed. Credit Union v. Cumis Ins. Society, Inc. (1984) Cal.App. 358, 364 (superseded in part by statute). To keep things simple, that case says that an insurance company has a duty to defend its insured, and that the duty is breached when an insurance fails to provide a lawyer whose ability to represent you is impaired by a disqualifying interest. However, not every conflict of interest is sufficient to trigger the requirement to appoint independent counsel, also known as “cumis counsel.” For instance, the fact that the insurance company chooses to defend you under a reservation of rights is not enough, by itself. Nor will a claim of punitive damages necessarily allow you to choose your own lawyer. In defamation cases, in particular, the most common scenario where independent counsel will be required is where the insurance company is defending under a reservation of rights because there is a coverage dispute; namely, that the alleged conduct in the complaint was intentional, as opposed to negligent. In these circumstances, an insurance company would be well advised to allow an insured to hire a lawyer of their own choosing.
If your insurance company has agreed to defend you under a reservation of rights, or if you have been sued for defamation and you want to explore whether you have the right to select your own lawyer, please feel free to contact our office to book a consultation. 626-793-8607.
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