Can the lawyer for a claimant's insurance carrier contact an uninsured motorist to get his cooperation in defending the case?

Plain-English summary

With the arrival of "uninsured motorist" coverage in automobile policies, a recurring problem arose: a policyholder sues an uninsured motorist, and the claimant's own insurance carrier hires counsel to defend that action on the uninsured motorist's behalf. The committee addressed what the carrier's attorney may do when the uninsured motorist, though served with a summons, does nothing to employ his own counsel. The committee concluded the attorney may contact him and seek his cooperation, subject to clear disclosure.

The committee, drawing on both the Canons and the Code of Professional Responsibility and on precedent from the Tennessee and Georgia bar committees, recognized the attorney's obligation to intervene on behalf of the insurance carrier as the real party in interest, with full disclosure to the court and all parties of the nature of his employment. At the same time, an attorney who actively solicited to represent the uninsured motorist himself would be acting improperly. The committee said it would not be improper for the attorney to notify the uninsured motorist that he represents the claimant's carrier, to invite and actively solicit his cooperation in the defense, to make abundantly clear that he is not undertaking to represent the motorist personally, and to advise the motorist to consult counsel of his own choosing.

The committee then addressed a harder follow-on: whether the same attorney could later be employed by the carrier to sue the uninsured motorist personally to recover a judgment the carrier paid. Quoting In re Boone, 83 F. 944 (1897), the committee restated that it is unprofessional to represent conflicting interests except by express consent after full disclosure, and that the test is whether the new retainer would require the attorney to act against a former client or to use information acquired in the prior representation. The committee concluded the answer turns on the facts: if the uninsured motorist had cooperated in the defense or furnished useful information, the later suit against him would be improper, but if he had done nothing in his own behalf or had secured other counsel, the attorney's later suit against him would not appear improper.

Currency note

This opinion was issued in 1971 under the former Code of Professional Responsibility, 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. The principles it applied are now found in Model Rule 4.3 (dealing with an unrepresented person), Model Rule 1.7 (concurrent conflicts), Model Rule 1.9 (duties to former clients), and Model Rule 7.3 (solicitation), with Kentucky's counterparts at SCR 3.130. 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 or requirement mentioned here.

Common questions

Q: Can the carrier's defense lawyer contact the uninsured motorist directly?

A: Yes. The committee said the attorney may notify the motorist that he represents the claimant's carrier and invite his cooperation, as long as he discloses that he does not represent the motorist and advises him to get his own counsel.

Q: Can that attorney offer to represent the uninsured motorist personally?

A: No. The committee said an attorney who actively solicited to represent the uninsured motorist would be acting improperly.

Q: Can the same lawyer later sue the uninsured motorist to recover what the insurer paid?

A: It depends. If the motorist cooperated or gave useful information in the defense, the later suit would be improper; if he did nothing himself or got other counsel, the committee saw no impropriety.

Background and rules framework

The opinion applied conflict-of-interest and solicitation principles, plus the lawyer's duty toward an unrepresented person, to the uninsured-motorist defense situation, relying on In re Boone, 83 F. 944 (1897) and out-of-state bar precedents. The modern analogs are Model Rule 4.3 (unrepresented persons), Model Rule 1.7 and Model Rule 1.9 (current and former conflicts), and Model Rule 7.3 (solicitation), with Kentucky's counterparts at SCR 3.130.

Citations and references

Rules of Professional Conduct:

• Code of Professional Responsibility (conflicts; dealing with unrepresented persons; solicitation); modern analogs Model Rules 4.3, 1.7, 1.9, 7.3

Cases:

• In re Boone, 83 F. 944, 952-953 (1897), on the test for representing conflicting interests

See also

• KBA Ethics Op. E-67: Negotiating With an Insurer's Lay Adjuster During Litigation
• KBA Ethics Op. E-65: Contacting a Represented Adverse Party Without Consent

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-054.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-54
Issued: September 1971

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:

May an attorney for a claimant’s insurance carrier contact an uninsured
motorist who takes no action to employ counsel for his cooperation in the
litigation if he notifies him he should seek counsel of his own choice and
where the tortfeasor has “uninsured motorist” coverage in his automobile
insurance policy?

Answer:

Yes.
OPINION

With the advent of the “uninsured motorist” coverage provisions of automobile
insurance policies now in effect throughout Kentucky, as well as in many other states,
certain ethical problems have arisen in our profession.
The most troublesome problem, from the standpoint of ethics of our profession,
arises when a policyholder files suit for damages against another motorist who is
uninsured, and the insurance carrier for the person seeking damages employs counsel to
defend the action on behalf of the uninsured motorist. The problem becomes even more
vexing when the uninsured motorist is served with a summons, and chooses to do nothing
himself in the way of employing counsel of his own choosing. Thus, the attorney for the
claimant’s insurance carrier is faced with the dilemma of deciding whether or not he should
contact the uninsured motorist and actively seek his cooperation in defending the litigation,
thus running the risk of being accused of solicitation of business and establishing an
attorney-client relationship between himself and the uninsured motorist who did not seek
his advice and counsel. Obviously, in order to properly defend the action, the cooperation
of the uninsured motorist is essential, but the “real party in interest” in this kind of situation
is the insurance carrier for the claimant.
This problem has recently been presented to the Kentucky State Bar Association,
and has likewise been called to the attention of the Organized Bar in other states. Precedent
decisions by Committees on professional ethics of the State Bar Associations of Tennessee
and Georgia have been considered in attempting to resolve this problem.
Both the Canons of Professional Ethics of the American Bar Association and the
newer Code of Professional Responsibility of the American Bar Association, which has
been adopted by the Kentucky State Bar Association as a guideline, would seem to

recognize the obligation of the attorney caught in such a dilemma to intervene on behalf
of the insurance carrier as the real party in interest, making full disclosure to the court
and all parties concerned of the exact nature of his employment. At the same time, it
likewise appears that, notwithstanding the difficulties encountered in adequately
defending litigation of this nature, an attorney who actively solicited the representation of
the uninsured motorist would be acting improperly and in violation of the spirit of, if not
the actual letter of, the professional guidelines set forth above. It would not appear to be
improper for the attorney to notify the uninsured motorist that he was representing the
insurance carrier for the claimant in defending the litigation, and invite and actively
solicit the cooperation of the uninsured motorist in the defense of the claim, making it
abundantly clear to the uninsured motorist that the attorney was not undertaking to
represent him personally. Such a contact with the uninsured motorist should also include
the advice that the uninsured motorist should consult counsel of his own choosing for any
further advice he might desire in the pending litigation.
Even more complicated is the situation wherein the litigation results in a judgment
for the plaintiff under the uninsured provisions of the policy, and the insurance carrier
thereafter seeks to employ the same attorney who defended the original action to bring suit
against the uninsured motorist personally to recover the judgment paid by the insurance
company.
Under the professional guidelines above quoted, it is unprofessional and a violation
of the ethics of our profession to represent conflicting interest, except by expressed consent
of all concerned, given after a full disclosure of all of the facts. Here it becomes the duty of
the attorney, if he accepts such employment, to contend for that which the same duty
required him to oppose in the original litigation. See In re Boone, 83 F 944, 952-953
(1897):
The test of inconsistence is not whether the attorney has ever appeared
for the party against whom he now proposes to appear, but it is whether his
accepting the new retainer will require him, in forwarding the interest of his
new client, to do anything which will injuriously affect his former client in any
matter in which he formerly represented him, and also whether he will be called
upon, in his new relation, to use against his former client any knowledge or
information acquired through their former connection.
It would appear that whether or not an attorney should accept representation of an
insurance carrier in these circumstances would depend upon whether or not the uninsured
motorist cooperated in the defense or furnished any information which would be useful to
the attorney, to say the least, in a subsequent action on behalf of the insurance carrier
against the uninsured motorist personally. On the other hand, if the uninsured motorist
chose to do nothing in his own behalf, or secured other counsel, it would not appear to
the Committee to be improper for the attorney to subsequently prosecute litigation against
the uninsured motorist.

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.