The committee eventually accepted the subcommittee's draft that left disclosure of the guidelines as an option to the company or attorney providing a detailed explanation. As adopted, the disclosure form would be provided when the insurance company selects an attorney to represent a policy holder when a claim is made or a lawsuit is filed. The insurance company typically will pay all costs and attorney fees, unless specified otherwise in the policy. Some insurance policies say that the company will control the defense including giving the lawyer instructions, but the rights of the insured cannot be ignored. The form advised the policy holder to communicate his or her concerns and interests to the company to be incorporated in the instructions.
Some companies use litigation guidelines directing how lawyers are to handle the case.
Those should, upon request, be explained by the company or the lawyer to the policy holder, or a copy of the guidelines can be provided. Lawyers have a duty to keep secret the policy holder's confidential information, even if the information indicates the company might not be obligated to cover the claim under the policy. The subcommittee approved adding language telling the insured that some companies audit bills and files of attorney and that if information could be revealed contrary to the policy holder's interest, then the lawyer should advise the policy holder on that issue. If an insured believes a conflict of interest develops between his or her interests and those of the insurance company, that should be discussed with the lawyer. The form also says a lawyer has a duty to help identify the conflict and that if an actual conflict arises, the company may have to provide a separate attorney for the insured.