After suit is filed, may a plaintiff's lawyer communicate directly with the defendant's liability insurer instead of through the insurer's appointed defense counsel?

Plain-English summary

The Committee was asked, after a negligence suit has been instituted, under what circumstances plaintiff's counsel may communicate directly with the defendant's liability insurance carrier or with the Unsatisfied Claim and Judgment Fund Board. The Committee assumed the ordinary case: suit instituted, coverage undisputed, policy limits ample, and the carrier having accepted the duty to defend and retained counsel designated to appear as attorney of record for the named insured.

Under those circumstances, the Committee held that Canon 9 of the Canons of Professional Ethics requires plaintiff's counsel to refrain from communicating with the carrier unless he secures express permission from its attorney of record authorizing the communication. It added that it is unethical to participate in such communication whether it is initiated by a non-attorney representative of the carrier or by plaintiff's counsel, and that if the express authorization from defense counsel is limited, the communication must be confined within those limits.

The Committee noted the opinion was consistent with its Opinion 81, 88 N.J.L.J. 469 (1965), and the authorities cited there, with ABA informal Opinions 523 and 670 (1962), and with N.Y. County Lawyers Association Opinion 47.

Currency note

This opinion was issued in June 1968, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 9, the no-contact rule, which is now codified as RPC 4.2 (communication with a person represented by counsel). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can plaintiff's counsel deal directly with the insurer to settle once defense counsel is in the case?

A: Not without the express permission of the carrier's attorney of record; the Committee held Canon 9 bars direct contact with the carrier absent that consent.

Q: Does it matter who starts the conversation?

A: No. The Committee said it is unethical to participate in such communication whether a non-attorney representative of the carrier or plaintiff's counsel initiates it.

Q: What if defense counsel grants only limited permission?

A: Then plaintiff's counsel must confine the communication within the limits set by that authorization.

Background and rules framework

The opinion applies Canon 9 of the Canons of Professional Ethics, which barred a lawyer from communicating on the subject of a controversy with a party represented by counsel without that counsel's consent. The carrier, having retained counsel of record for its insured, stands in the position of a represented party for this purpose. The modern analog is RPC 4.2. A later opinion, Opinion 142, addressed how a carrier's counsel may give the consent this opinion requires.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 9

Other opinions cited:

• NJ ACPE Opinion 81, 88 N.J.L.J. 469 (1965)
• ABA Committee on Professional Ethics, informal Opinions 523 and 670 (1962)
• N.Y. County Lawyers Association, Committee on Professional Ethics, Opinion 47, 39 N.Y. State Bar Journal 457 (Oct. 1967)

See also

• NJ ACPE Op. 142: Insurance Carrier's Form of Consent to Settle

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp132-1.html

Original opinion text

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

91 N.J.L.J. 369
June 6, 1968

OPINION 132

Contacting Adversary's Insurer

The following inquiry has been submitted for this Committee's opinion:

After a negligence suit has been instituted, under what circumstances may counsel for the plaintiff communicate directly with the liability insurance carrier of the defendant or with the Unsatisfied Claim and Judgment Fund Board?

A wide variety of hypothetical situations is here possible; however, this Committee must assume the facts incident to the ordinary case, i.e., that suit has been instituted, coverage under the policy is not disputed and the policy limit is ample to cover any potential recovery. Further, we assume that the carrier has accepted the obligation to defend and has retained counsel designated by it to appear as attorney of record for the defendant, its named insured.

Under such circumstances Canons of Professional Ethics, Canon 9 requires that counsel for the plaintiff refrain from communicating with the carrier unless he secures express permission from its attorney of record authorizing such communication.

It is unethical to participate in such communication with the carrier whether the communication is initiated by a non-attorney representative of the carrier or by counsel for the plaintiff. Furthermore, if the express authorization from defendant's counsel of record is limited, the communication must be confined within such limits.

This opinion is consistent with our Opinions 81, 88 N.J.L.J. 469 (1965), and the authorities therein cited and also with informal Opinions 523 and 670 (1962) of the American Bar Association's Committee on Professional Ethics. See also N.Y. County Lawyers Assn., Committee on Professional Ethics, Opinion 47 reported in 39 New York State Bar Journal 457 (Oct. 1967).