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A Lawyer is not a Super Adjuster\\n\\nI became a lawyer in 1972. Before that I was an insurance adjuster and \\ninvestigator. Since 1972 I have never been, nor acted as, an adjuster or\\n an investigator. Of course, part of being a lawyer requires some \\ninvestigation because failing to do so would be a breach of the \\nfiduciary duty of a lawyer to his or her client.\\n\\nI learned immediately upon entering law school and later in the practice\\n of law, that an attorney\\u2019s failure to investigate potential defenses \\nconstitutes a denial of effective assistance of counsel. In fact, as \\nthe Supreme Court of Oregon stated: \\u201cTo fulfill the role assigned to \\ndefense counsel under our adversarial system of criminal justice, a \\nlawyer must investigate the facts and inform himself or herself with \\nrespect to the law \\u2018to the extent appropriate to the nature and \\ncomplexity of the case[.]\\u2019\\n\\nThe attorney-client privilege protects the client from disclosure of \\nprivate communications with counsel. The investigation conducted by a \\nlawyer as part of his or her duty to properly represent a client is the \\nwork of a lawyer and is and should always be protected by the attorney \\nclient privilege and the work product protection.\\n\\nSome Privileges are More Equal Than Others\\n\\nWith regard to insurance matters some courts have ignored the duties \\nowed by a lawyer to the client and have eliminated the attorney client \\nprivilege and the work product protection for most documents created by \\nthose lawyers who provide advice to insurers. For most of the more than \\n45 years I have been involved providing legal advice to insurers I have \\nbeen accused of being a \\u201csuper adjuster\\u201d rather than a lawyer to allow \\ninsureds to gain an advantage against an insurer, and gain access to the\\n private legal advice given to the represented insurer. \\n\\nIn Cadaret Grant & Co. v. Great American Insurance Company, No. CV \\n21-6665 (GRB)(AYS), USDC, E.D. New York (July 25, 2023) the USDC has \\ndecided to compel an insurer to produce documents that include the legal\\n advice provided by a lawyer to an insurer since it concluded that the \\nlawyer involved with the requested documents was acting as an \\ninvestigator or adjuster rather than as a lawyer.\\n\\nThe documents at issue reveaedl that as early as April of 2019, GAIC had\\n retained outside counsel Graziano to discuss claims under the Bond.\\n\\nThe Decision\\n\\nThe Cadaret Grant & Co court refused to provide the attorney client \\nprivilege to documents created by the lawyer except a document that \\nshowed the lawyer, Graziano\\u2019s, legal analysis and opinions. \\n\\nZALMA OPINION\\xa0\\n\\nA lawyer giving legal advice to an insurer faced with a claim is \\nrequired, to properly serve his or her client, to conduct a thorough \\nlegal investigation into the issues presented by the insurer for \\nassistance and legal advice. That advice can include many different \\nthings, but none changes the lawyer into an investigator or a claims \\nadjuster. Had counsel sat silent and only wrote a coverage opinion \\nwithout using his or her skill, legal knowledge and skill to obtain, \\ndirectly or by asking for additional information, to prepare the \\ncoverage opinion that the court found was privileged but all other \\ndocuments were not, is in error.\\n\\nThe\\xa0 Cadaret opinion is an insult to the lawyer who acted as a coverage \\nlawyer. The lawyer needed to obtain sufficient information from the \\ninsurer client so that he or she could provide a thorough, well-reasoned\\n and researched coverage opinion that was not within the ken of the \\ninsurance adjuster who had enough knowledge and experience to recognize that he or she needed the assistance and legal analysis of an \\nexperienced insurance coverage lawyer.\\xa0 The \\u201csuper adjuster\\u201d theory that\\n no investigative work of a lawyer can be part of the lawyer\\u2019s analysis \\nthat is protected by the attorney client privilege and/or the work \\nproduct protection is simply in error and a false conclusion.\\n\\n(c) 2023 Barry Zalma & ClaimSchool, Inc.