Can a plaintiff's lawyer settle a pending suit directly with the defendant's insurer when defense counsel does not know or consent?

Plain-English summary

In an automobile accident suit where both the plaintiff and the defendant were represented by counsel, the committee was asked whether the defendant's insurance carrier and the plaintiff's attorney could negotiate a settlement of the pending claim without the knowledge and consent of the attorney for the defendant and the carrier. It answered no.

The committee stated that it is unethical conduct for a lawyer to communicate on the subject in controversy with a party who is represented by counsel, and that doing so directly violates Canon 9 of the Canons of Professional Ethics. It pointed to the annotation on the subject at 1 ALR3d 1109. Applying that rule to the facts, the committee concluded it would be unethical for an attorney to discuss the pending case with the representative of the insurance carrier when the parties are represented by counsel.

Currency note

This opinion was issued in 1965 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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 point mentioned here.

Common questions

Q: Can a lawyer negotiate a settlement directly with a represented opposing party?

A: Under this opinion, no. The committee held that communicating on the subject in controversy with a represented party violates Canon 9.

Q: Does the no-contact rule reach the opposing party's insurance carrier?

A: Yes, on these facts. The committee treated discussing the pending case with the defendant's insurance carrier, where the parties were represented, as the prohibited communication.

Background and rules framework

The opinion applied Canon 9 of the former Canons of Professional Ethics, the rule against a lawyer communicating with a represented party on the subject of the representation. The modern analog is Model Rule 4.2 (communication with a person represented by counsel), with Kentucky's counterpart at SCR 3.130(4.2).

Citations and references

Rules of Professional Conduct:

• Canon 9 (communicating with a represented party on the subject in controversy); modern analog Model Rule 4.2

Other references:

• Annotation, 1 ALR3d 1109 (communication with a represented party)

See also

• KBA Ethics Op. E-67: Negotiating With a Lay Adjuster
• KBA Ethics Op. E-65: Contacting a Represented Party
• KBA Ethics Op. E-54: Contacting an Uninsured Motorist

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-028.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-28
Issued: November 1965

Question:

In an automobile accident case with suit pending and both the plaintiff and
defendant represented by counsel, may the insurance carrier for the
defendant negotiate a settlement of the claim which is the subject of the
pending litigation with the attorney for the plaintiff without the knowledge
and consent of the attorney for the defendant and the insurance carrier?

Answer:

No.

References:

Canon 9
OPINION

It is unethical conduct for a lawyer to communicate upon the subject in controversy
with a party who is represented by counsel. Such action would be in direct violation of
Canon 9 of the Canons of Professional Ethics. See also the recent annotation on this subject
found at I ALR3d 1109. It is our opinion that it would be unethical conduct for an attorney
to discuss the case pending in Court with the representative of the insurance carrier when
the parties are represented by counsel as indicated in the question submitted.

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.