sources of the National Litigation Support Team. A recent study showed FPDs
get better results, on average, than private Criminal Justice Attorneys (CJA)!
But the FPD’s mission is to serve indigent
clients, and those who can afford to hire
a lawyer should. This article is aimed at
affording the private attorney of choice.
$$ Liability insurance
Most corporate insurance policies include
coverage for defending directors and
officers against claims arising out of the
business, including criminal charges. This
coverage comes with a catch. Because of
wrongful and intentional acts exclusions
in almost every policy, liability for actual
criminal conduct is not covered. Meaning
that if a criminal defendant loses, or even
“loses,” the insurance company is not re-
sponsible for the cost of the defense.
The second “lose,” the one in quotes
in the previous sentence, is there because
even many successful defense outcomes
don’t result in an outright dismissal or
acquittal. Did you bargain 10 felonies
with a guideline range of 30 years down
to a single count with a six-month agreed
sentencing recommendation? Were you
convicted at trial of a single false-state-
ment count, but wrested “not guilties”
from the jury on the other 49 counts?
Most lawyers, and most clients, would
consider these wins. But to an insurance
company, they’re still convictions, and
therefore likely excluded from coverage.
Insurance companies pay to defend
against criminal charges in the first place
because, until the case is decided, there’s
no easy way to determine whether there
was an intentional, wrongful, and therefore excludable act. The duty to defend
therefore extends to all conceivably
covered conduct — even if the policy
ends up not covering it. In many states,
insurance companies will then often
proceed under a “reservation of rights”
letter, advancing payments for the moment but warning the insured defendant
that those payments may be taken back
depending on the outcome of the case.
But in Washington courts (and federal
courts applying Washington law), the
reservation of rights is not sufficient. As
our Supreme Court held in National Surety Corp. v. Immunex Corp.,
5 an insurance
company may not unilaterally alter the
terms of a policy by in effect inserting a
reimbursement provision if such a provision was not explicitly present:
Where the insurance contract is silent
about the insurer’s right to reimbursement of defense costs, permitting
reimbursement for costs the insurer
spent exercising its right and duty to
defend potentially covered claims prior to a court’s determination of coverage ... would amount to a retroactive
erosion of the broad duty to defend[.]
But there are complications.
First, insurance companies can include
reimbursement clauses in their policies.
Protection Strategies, Inc. v. Starr Indemnity & Liability Co.,
7 a case out of the
Eastern District of Virginia, involved such
a clause. Protection Strategies, a defense
contractor, came under investigation for
bribery and fraud in connection with a
NASA contract, and its insurer, Starr, paid
to defend the company’s officers. The
policy excluded coverage for deliberate
1-800-DUI-AWAY • Seattle Everett Tacoma
Loving, Intuitive, Relentless.
Not necessarily the public’s idea of a criminal
defense lawyer. Yet to me these qualities
are essential. We’re all human. People
make mistakes. My job is to tell the
whole story, the human story. The law
must be compassionate to be just.
I recently defended a young man.
Terminally ill, with extensive
criminal history, he’s the sole
parent of a toddler. Facing a
five year sentence on a four
count felony, he likely would
have died in prison. I fought
for him, asserting that his life
is larger than his mistakes. The
Judge agreed. He and his family
have a second chance.