The National Association of Surety Bond Producers (NASBP) recently published the second of a two-part article series authored by Adrian D’Arcy in its Surety Bond Quarterly’s summer 2026 edition, titled “Ethical Considerations When a Surety Tenders Its Defense to Its Principal.”
In this second part, Mr. D’Arcy focuses on the issue of how, once a surety tenders its claim to its principal’s attorney, that attorney should proceed with the dual representation and the ethical hurdles involved. Specifically, the article discusses client communications and confidentiality, ethical issues with the client paying the attorney, ethical issues with the surety wanting to settle the principal’s claims, and issues that may arise post representation. In addition, this second part of the covers some court decisions addressing whether the earlier dual representation prohibited the attorney from representing one of the parties in subsequent litigation.
As noted in the first part of the article, tendering defense can be an attractive option for sureties and principals who wish to reduce costs and attempt to streamline the litigation process but the risks and the substantive ethical considerations must be considered as well when a surety considers tendering its defense.
Both parts can be read by clicking on their respective Surety Bond Quarterly images:
Surety Bond Quarterly is the official professional magazine of the NASBP. It provides industry news, market trends, and insights for surety and construction professionals. Adrian, along with the entire D’Arcy Vicknair team, is proud to work with Surety Bond Quarterly to provide helpful information for contractors and sureties alike.
