Attorneys: Correspondence


American Zurich Ins. Co. v. District Court (Todd) [03/13/12] 2012 MT 61 Generally, the attorney-client privilege extends only to communications between an attorney and a client, though it may extend to another party involved in a joint effort with respect to a common legal interest.  The privilege does not extend to correspondence issued by an insurer’s attorney to the insurer’s adjuster, when the adjuster shares that letter with the employer.  The employer is not a co-litigant, it has no liability in a workers’ compensation claim, it is not a party to the action, and it has no shared common interest with the insurer in the adjustment of the claim.  The adjuster has authority to act on behalf of the insurer pursuant to § 39-71-107, MCA, including the authority to waive the attorney-client privilege by sharing the attorney’s letter with the employer.

American Zurich Ins. Co. v. District Court (Todd) [03/13/12] 2012 MT 61 Waiver of the attorney-client privilege by voluntary disclosure does not necessarily waive the confidentiality of attorney work product.  The purpose of the attorney-client privilege is to protect confidential communications, thereby promoting the attorney-client relationship and the functioning of the legal system.  The purpose of the work-product doctrine is to protect the mental impression and opinions of counsel from disclosure to opposing counsel and his client.  The employer being a disinterested third party precluded by law from participating in the adjustment of the workers’ compensation claim, and with an overlapping relationship with its insurer and the claimant, there could be no reasonable expectation that the insurer’s attorney’s work product correspondence would be kept confidential by sharing it with the employer. 

Miller v. State Fund [9/20/00] 2000 MTWCC 63 Letter from insurer's counsel to Clerk of Workers' Compensation Court agreeing with statements in letter from claimant's counsel did not create binding agreement for dismissal of insurer's affirmative defense of fraud. Letter from claimant's counsel to Clerk had indicated case should settle if claimant was found not guilty of fraud in pending criminal case. When writing to the Clerk, insurer's counsel merely concurred with logic of earlier letter. Claimant, in any event, was not actually found "not guilty" when charges were dismissed.
Haas v. State Fund [9/1/00] 2000 MTWCC 54 Letter from counsel for State Compensation Insurance Fund to administrator of Tort Claims Unit of State of Montana regarding notice of tort claim filed by workers' compensation claimant was an attorney-client communication and thus absolutely privileged from discovery. Hearing Examiner for Workers' Compensation Court would be made available if counsel for claimant wished confirmation that letter was in fact attorney-client communication.
Lyons v. Montana Power Company [2/12/99] 1999 MTWCC 16 Counsel's desire to litigate two cases together and soon does not justify failure to allow the opposing party time to assess and possibly meet a demand. Court condemns counterproductive hardball tactics.
Lyons v. Montana Power Company [2/11/99] 1999 MTWCC 15 The Court condemns the hard-ball litigation practice occurring in this case. This matter could have been resolved easily without litigation by communication between counsel. The approximately three hour deadline set by counsel for response to his demand was unnecessary, ill-mannered, and counterproductive. Montana Power Company is also at fault for not computing and paying benefits owed claimant instead of taking the position the matter would be resolved through litigation, though this fault is mitigated somewhat by the lack of clarity in the information provided by claimant regarding medical bills.
Kastella v. Plum Creek Timber Company [06/30/95] 1995 MTWCC 54 Where medical panel provisions of the Occupational Disease Act clearly contemplate evaluation by an impartial medical panel, argumentative ex parte communication from respondent’s counsel received by the physician without time for claimant to add his spin on the evidence may prejudice claimant. The Department of Labor and Industry is obligated to take steps to regulate such communications.