HBA-TBM S.B. 1653 77(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1653
By: Bernsen
Insurance
5/8/2001
Engrossed



BACKGROUND AND PURPOSE 

Currently, Texas insurance consumers are entitled to ethical representation
if they find themselves sued in a civil case.  In an effort to help ensure
such ethical representation, the State Bar of Texas Professional Ethics
Committee has recently published Ethics Opinions 532 and 533.  While
speaking to different issues, both opinions stress the fact that the
lawyer's only client is the insured and the lawyer must at all times
protect the interests of the insured if those interests would be
compromised by the insurer's instructions. Ethics Opinion 532 states that a
lawyer's invoice or fee statement describing legal services rendered by the
lawyer constitutes confidential information.  Without first obtaining the
informed consent of the insured, a lawyer cannot, at the request of the
insurance company paying the fees for the representation, provide fee
statements to a third party auditor describing legal services rendered by
the lawyer for the insured.  Senate Bill 1653 prohibits a statement of fees
for legal services rendered to an insured and paid for by an insurer from
being released to a third party auditor without the informed consent of the
insured.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

Senate Bill 1653 amends the Insurance Code to provide that any insurer that
issues a liability insurance policy to or covering any resident of this
state, covering liability incurred by an insured in this state, or under
which the insurer provides a defense to an insured in a claim or action
pending in this state is prohibited from disclosing defense counsel fee
statements regarding services provided for an insured to any person, other
than the insured, who is not an employee of the insurer.  The bill
prohibits an insurer from requiring defense counsel to disclose the defense
counsel's fee statements to any person who is not an employee of the
insurer.  To the extent otherwise permitted by law, the bill authorizes an
insurer to disclose defense counsel's fee statements to a person who is not
an employee of the insurer for the purpose of reviewing the fee statements
in connection with a lawsuit over payment of the fees.  Disclosure under
this provision does not in itself waive any attorney-client privilege.   

The bill provides that a provision in a contract entered into between an
insurer and defense counsel or between an insurer and an insured that
requires or permits disclosure of the defense counsel's fee statements to a
person who is not an employee of the insurer is against public policy and
is void and unenforceable.  A waiver by an insured of the prohibitions
against disclosure of a defense council fee statement is against public
policy and is void and unenforceable.  The bill authorizes an insured to
bring an action against an insurer to recover any actual damages
proximately suffered by the insured because of a violation of the
disclosure provisions and to obtain injunctive relief to prevent the
threatened or continued violation of the provisions.  The bill requires a
court to award reasonable and necessary attorney's fees to a person who
recovers damages or obtains injunctive relief.   

The bill sets forth a civil penalty for a violation of the disclosure
prohibitions.  At the request of the commissioner of insurance, the bill
requires the attorney general to file and prosecute a civil action in a
district court in Travis County to recover a civil penalty.   

EFFECTIVE DATE

September 1, 2001.