August 11, 2021 | Dianne Criswell

Practices in place ensure attorneys acting as defense counsels are qualified.

Like many public entity risk pools, the CSD Pool has requirements and procedures to ensure that the attorneys on the Pool’s panel are qualified to act as defense counsel.

The CSD Pool Board of Directors must approve attorneys to participate on the panel and consider their experience defending public entities and litigating insurance claims when taking up a new application – and it’s important to note that any approvals are for the individual attorney, rather than a general approval for any attorney in a firm.

In addition to the regulation of attorney conflicts under the Colorado Rules of Professional Conduct, which are the ethical and conflict rules governing the practice of law in Colorado, the CSD Pool also restricts any attorney on the panel who actively serves or recently served as counsel to a member from simultaneously serving as defense counsel.

This restriction also applies to attorneys from the same firm. While this policy recognizes that there may be extraordinary or unusual circumstances in which this prohibition can be waived, this long-standing restriction exists to help avoid conflicts or the appearance of conflicts, and to maintain the high standards of professional experience of the panel for members.

This topic was addressed October 15, 2020 during the Association of Governmental Risk Pools (AGRiP) “Pooling Today” conference in a session titled “Using Defense Attorney ‘Report Cards,’” in which risk pools described the challenges of evaluating performance and professionalism when dozens, and sometimes hundreds, of attorneys were providing defense.

Further, by setting high standards for attorneys accepted onto the panel, the presenters believed their pool’s defense costs were more efficient than when less experienced litigators were allowed to serve. It was the rising defense costs that led some of the risk pools presenting at this AGRiP session to take a deep-dive into their practices, with concerns about impacts to members’ contributions.

For the CSD Pool, performance evaluation to ensure a high quality of defense is made simpler, due to the careful maintenance of approved attorneys on the panel. Further, the policy prohibiting simultaneous service meets the principle to which we have seen our Members hold themselves, which is to avoid even the appearance of a conflict of interest.

By putting these practices in place, the CSD Pool hopes to best serve its members by providing experienced attorneys as defense counsel on claims filed against them.