March 21, 2019

Two-Faced Legal Fee Management? Defense Counsel vs. Coverage Counsel Costs

A common complaint leveled against insurance companies is that they pay one (low) rate for their defense counsel and another (higher) rate for their coverage counsel. The idea is that insurers skimp on legal services when it’s their insureds whose fate is on the line but spare no expense when their own hides are at stake in a coverage or bad faith dispute. The undercurrent is that insurers are being inconsistent if not two-faced by observing two separate tracks of rate structures.

One claims specialist recalls a meeting of claims executives years ago wherein the subject for discussion was attorneys’ fees (as it often was and is). One vice president (and pundit ) was overheard remarking, “You care about ‘how much’ when it’s the insured who is being defended, but when it’s YOU who’s the defendant, or the subject of a subpoena, then you care about ‘how good.'”

Let’s look at this knock on insurers, though. First, comparing general insurance defense counsel with coverage counsel may not be an apples-to-apples comparison. General insurance defense counsel often defend policyholders against garden-variety kinds of claims that many (many) law firms could handle competently, by contrast, there are not nearly as many coverage lawyers around. The two kinds of practice call for somewhat different skill sets, and their respective supply and demand curves are different.

Let’s also note that most litigated coverage cases involve larger stakes than the run of the mill litigated case (exceptions abound). Second, the macro/precedent impact of a coverage matter – broader impact on other cases and policies — makes the consequences more sweeping. Third, coverage expertise is often more specialized than general litigation defense, commanding premium rates.

Just as partners in firms are paid more than associates for a host of (legit) reasons. Partners are more specialized and more seasoned. They are in greater “demand” due to their business development skills. Thus, they are paid more than associates. Does this suggest that law firms are two-faced or inconsistent?

The quip from the Claims VP is telling and perhaps somewhat tongue-in-cheek, but nevertheless there is nothing inherently two-faced or nefarious (nor surprising) that coverage counsel often command higher rates than run-of-the mill defense attorneys, no disrespect intended to the latter either.

In some cases, defense counsel possibly should command equally high fees or even higher fees than coverage counsel. On balance, though, a fee disparity here may be rational and have a legitimate rationale.

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