People in the insurance business are occasionally asked for opinions about loss or claim situations. Most such questions are simple, but others may involve more complicated matters that go beyond their personal or professional purview.

For example, the “Question Of Ethics” for this column involves an attorney who asks you to review a coverage opinion written by an insurance representative. Your belief is that not only is the opinion flawed, but also partially outside the expertise of the person who wrote it.

The attorney is your friend, and you are also acquainted with the author of the opinion. In this situation, what are your ethical duties to both the attorney and the person who wrote the report?

Responses were about evenly split between (1) “pass” and do not give your opinion, and (2) give your opinion responsibly.

For the first group, “discretion is the better part of valor” was the watch phrase, while for the second group it was, “if you are a professional, act professionally.” Most responding had mixed suggestions as to what to do or say to the author-acquaintance.

As to those who cautioned that no opinion should be given, an adjuster wrote: “Simple, down and dirty. Tell the attorney you know the author and your assistance would be a conflict of interest.”

A private investigator agreed: “Providing a professional opinion always leads to trouble. It's one thing to be hired to do so, but if it's a 'drive-by' opinion, it's not a legal opinion and should not be relied on.”

If pressed, he suggested referring the attorney to a trusted senior claims representative. The investigator also noted that he does not seek friendships with attorneys, and rather tries to keep all relationships professional. This, he reported, “doesn't get me invited to many cocktail parties, either!”

A former managing general agent and current branch manager for an insurer also counseled giving no opinion: “I would tell the lawyer friend that since I know the author, it would be better that I not comment. I would also not say anything to the author of the report.”

A general adjuster warned that the original opinion may have been solicited by that attorney, and may be a “work product” that should not be revealed. In that case, there is an ethical question for the attorney to address.

A coverage lawyer and expert witness noted: “If this is just a friendly call with no official requirement, it is better to remain silent. Free advice is worth the amount paid and should be avoided, because wrong or poorly thought-out opinions could cause the person giving the opinion serious trouble.”

An Illinois broker warned: “Don't give advice without all the facts. Ethics are wonderful, but reality is that you can be sued for acting ethically. Sometimes it is smarter to pass.”

An Ohio producer would “offer sources for the attorney to confirm or refute the basis of the report. To do otherwise would make you a party to a defamation suit and your E&O coverage may not protect you.”

From the responders who would offer an opinion, an agent with a law degree suggested: “My duty to the lawyer would be only within the realm of 'custom and usage.' I would point out the flaws of the report in non-legal language and note my comments are based on my experience. I would not suggest the author was out of his or her element.”

An educator and expert witness wrote: “Outside of legal work (and sometimes there, too), rarely is all the necessary information provided for a thoughtful, honest opinion. To be helpful, I usually respond, 'based on what you told me, and not knowing all the facts, it appears that….' Always hedge your reply and [state that] one little additional fact may dramatically change your opinion.”

He also noted that most ethical guidelines advise against making negative comments on other professionals.

The general adjuster, as a favor, would offer the attorney his opinion with all the caveats noted above.

The Illinois broker, assuming all relevant facts are known, would respond to the attorney: “I don't necessarily agree with this opinion because…”

A risk manager from New York claimed the ethical questions were a “no brainer. If I give an opinion, my client is the attorney and no one else. My ethical obligation is solely to the attorney and should include a professional discussion pointing out observed flaws and incorrect statements.”

A Texas producer responded that any opinion should be strongly supported–then the attorney can do whatever they need to do. He noted, with his tongue deeply in his cheek: “Everyone is entitled to his or her opinion, but I am not in charge of changing everyone to my perfect way of thinking.”

A claims manager suggested a different approach: “You call the insurance representative and bring to their attention that there is a question as to whether or not the coverage opinion is correct. Get clarification and bring up points you believe may be incorrect. This allows them to correct any errors, and you might just learn something.”

A Florida producer wrote: “Giving a second opinion is not a personality contest. It should be an honest, professional attempt to present the facts and your conclusions in a straightforward manner. If you give an opinion, do it in writing, and ethically give the best answer and advice regardless of stepping on anyone's toes. Stay within your expertise.”

A Cincinnati-area producer reminds us that “ethics has no boundaries,” as the insured's interests should be paramount. He would advise the attorney of his opinion and suggest contacting the original author.

He paraphrased Admiral Greer from a Tom Clancy classic: “You took an oath not to me, or the President, but to his boss–in this case, the insured.”

Finally, an exclusive agent from Pennsylvania suggested not just giving his opinion to the attorney, but also to the author of the original opinion.

In summary, two basic ethical themes pervaded the responses.

o The first was that it was not only easier in this situation to decline to give an opinion, it is also ethical. Also, if not giving an opinion, it would also be ethical to point the attorney in the direction of factual assistance.

o Second, if an opinion is given, (1) be sure you have all the facts, (2) clearly state any assumptions, and (3) state your opinion honestly and with support. There was no consensus on contacting the original author.

Special Reports /

Is It More Ethical To Keep Your Opinion To Yourself?

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