Can an insurance-defense lawyer file an answer for the insured without first consulting the insured, where the insured will not cooperate?

Plain-English summary

The committee considered whether an attorney employed by an insurance carrier to defend a claim against its policyholder, brought by the insured's wife, acted unethically by filing an answer without first consulting the insured. The attorney's own investigation and the carrier's had led him to conclude the insured would not cooperate, and subsequent developments confirmed that, including the insured's refusal to correspond about the case or answer interrogatories. The committee answered no.

The committee applied Canon 6, which states generally that a lawyer must represent a client competently, and DR 6-101(2), which requires that a lawyer not handle a legal matter without preparation adequate in the circumstances. It found nothing in the attorney's conduct that offended that standard. The attorney was employed by the insurer; on these particular facts the insured appeared to be little more than a nominal party; and the attorney had already been led to believe, correctly, that he would receive no cooperation from the defendant.

The committee observed that the defense of such claims is difficult at best, that no one suggested the answer filed failed to protect the interests of all concerned, and that its own examination of the answer showed compliance with Canon 6. There would be ample time for any consultation that might be required, and in these circumstances the failure to consult the insured before pleading was, in the committee's judgment, no indication of ethical impropriety.

Currency note

This opinion was issued in 1975 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Was it unethical to file an answer without first consulting the insured?

A: No, on these facts. The committee held the conduct did not offend Canon 6 or DR 6-101(2), where the insured was essentially a nominal party who would not cooperate and the answer protected everyone's interests.

Q: Why did the insured's lack of cooperation matter?

A: The committee noted the attorney had been led to believe, and later confirmed, that the insured would not cooperate (refusing to correspond or answer interrogatories), which supported proceeding with a protective answer without prior consultation.

Q: Did the committee say consultation could be skipped entirely?

A: No. It said there would be ample time for such consultation as might be required; it held only that the failure to consult before filing the answer was not, in these circumstances, an ethical breach.

Background and rules framework

The opinion applied Canon 6 of the former Code of Professional Responsibility (competent representation) and DR 6-101(2) (handling a matter only with adequate preparation). The modern analogs are Model Rule 1.1 (competence) and Model Rule 1.4 (communication with the client).

Citations and references

Rules of Professional Conduct:

• Canon 6 (competent representation); DR 6-101(2) (adequate preparation); modern analogs Model Rules 1.1 and 1.4

See also

• KBA Ethics Op. E-95: Copying the Insurer on a Demand Letter
• KBA Ethics Op. E-134: Day-of-Trial Withdrawal Over an Unpaid Fee

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-105.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-105
Issued: March 1975

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

Where an attorney has been employed by an insurance carrier to defend a claim against its policyholder by the insured's wife, is it unethical for the attorney to file an answer to the suit without first consulting the insured?

Answer:

No.

References:

Canon 6; DR 6-101(2)

OPINION

An attorney employed by an insurance carrier to defend a claim against its policyholder by the insured's wife inquires whether there is any impropriety in filing an answer to the suit without first consulting the insured. The attorney advises that both his own investigation and that of the carrier led him to conclude the insured would not cooperate in defending the case, and for this reason he proceeded with the filing of an answer without discussing the matter with the defendant. Subsequent preparation of the case confirmed the insured's reluctance to cooperate, including a refusal to correspond about the case or to answer interrogatories. The attorney now asks if he has committed any ethical breach in defending the case.

Canon 6 observes generally that it is incumbent upon a lawyer to represent a client competently. DR 6-101(2), adopted pursuant to this Canon, requires that a lawyer not handle a legal matter without preparation adequate in the circumstances.

Applying this standard, we find nothing in the conduct of the attorney in question that offends this or other ethical requirements. The attorney was employed by the insurer, and in the particular circumstances here presented it would appear that the insured was little more than a nominal party. Coupled with this is the fact the attorney had already been led to believe he would receive no cooperation from the defendant, a suspicion confirmed by subsequent developments. We cannot say that an attorney, faced with these facts, was ethically wrong in preparation of an answer without consulting the insured.

The defense of such claims is difficult at best. There has been no suggestion that the pleading filed in defendant's behalf did not fully protect the interests of all concerned, and our examination of the answer convinces us that there has been compliance with the requirements of Canon 6. There will be ample time for such consultation as may be required, and in the circumstances presented the failure to consult the insured before pleading is in our judgment no indication of ethical impropriety.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.