(Editor's Note: The following article has been contributed by Eric J. Schreiner, partner of the litigation department and practice leader of the employment group at Kleinbard Bell and Brecker LLP.)

Insurers routinely appoint defense counsel to defend the interests of their insureds against claims by third parties. Defense counsel is charged with protecting the interests of the insured. At the same time it has reporting obligations to the insurer, and the insurer typically is involved in discussions regarding strategy and potential resolution of claims.

This joint relationship between the insurer, insured, and defense counsel sometimes is referred to as the “tripartite relationship.” One concern of both insurers and insureds in the “tripartite relationship” is the ability to protect communications with appointed defense counsel. It generally is in the interest of both insurers and insureds to prevent such communications from being subject to disclosure to third parties, particularly a plaintiff in an underlying lawsuit where the insurer is providing a defense to its insured. Therefore, a critical issue for the parties is how to protect communications between an insurer, its insured, and appointed defense counsel from disclosure to third parties.