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Ethical Lawyers Should Not Take Advantage of Right to Independent Counsel   

Consider Center Foundation v. Chicago Insurance Co., 227 Cal. App. 3d  547, 278 Cal. Rptr. 13 (Cal.App.Dist.2 02/05/1991) The Center for  Feeling Therapy and its therapists were sued for medical malpractice and  on various intentional tort theories. One of the Center\\u2019s insurers,  Chicago Insurance Company, following a partially directed verdict in  favor of the insureds sued to avoid payment of independent counsel  selected by the insured.  The Center and its therapists were sued by at least 50 former patients  in over a dozen lawsuits alleging a variety of intentional torts and  professional malpractice. The former patients claimed they had been  subjected to violence and psychological coercion to compel them to  donate their services and their money to the Center and they sought more  than $300 million in damages for the harm done to them. Because of the  conflict created by the carriers= reservation of rights, many of the  defendants retained their own attorneys.  Following the Cumis decision in December 1984 (San Diego Federal Credit  Union v. Cumis Ins. Society, Inc., supra, 162 Cal. App. 3d 358), the  Woldenberg group renewed its demand for a defense under the control of  Barash & Hill. The Woldenberg group, acting through Barash &  Hill, concurrently Adischarged@ Fonda & Garrard, the firm retained  by Chicago, and demanded that Fonda & Garrard cease all work on the  Rains cases.  Barash & Hill=s fees included billings by a single attorney for more  than 24 hours in a day and for 78 hours over a four\\u2011day period.  Paralegals and secretaries were sometimes billed as attorneys, at  attorney rates.

Time spent on noninsured cases was billed to Chicago. Several witnesses  described Barash & Hill\'s bills as "unconscionable," "unreasonable,"  "utterly inconceivable," "absolutely outrageous" and "way out of  bounds."  In the appellate court\\u2019s view, the duty of good faith imposed upon an  insured includes the obligation to act reasonably in selecting as  independent counsel an experienced attorney qualified to present a  meaningful defense and willing to engage in ethical billing practices  susceptible to review at a standard stricter than that of the  marketplace.