If a workers' comp claimant asks the employer's lawyer whether to appeal the board's award, what can that lawyer say without breaching loyalty to the employer?

Plain-English summary

The inquiry asked whether an attorney retained by an employer that carried workmen's compensation insurance was barred, when questioned by a dissatisfied claimant, from advising the claimant that he could appeal the Industrial Accident Board's award, and whether the retained lawyer could identify another lawyer the claimant asked about by name.

The committee answered through Canons 6 and 19. Canon 6 required the attorney to disclose all the circumstances of his relationship with the employer to the claimant, while still representing his client with undivided fidelity and not divulging the client's secrets or confidences. Canon 15 required fair and considerate treatment of adverse witnesses and suitors, and Canon 19 required candor in handling the facts. The committee concluded that the lawyer need not volunteer advice, but if the claimant made known his dissatisfaction and asked about procedure, candor and fairness would require the lawyer at least to state that the claimant has the right to appeal the board's award and is not bound by the adjusters' statements. The lawyer should disclose his position on the claim and, as a courtesy, advise the dissatisfied claimant to seek counsel. If the claimant asked the name of an attorney in another town, ordinary courtesy would have the lawyer give the name if known, and he could state whether he knew the named attorney to be a good compensation lawyer. The vote was 7-0.

Currency note

This opinion was issued in 1949, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; a lawyer's duties toward an unrepresented person are now addressed by ABA Model Rule 4.3 and the duty of confidentiality by Model Rule 1.6. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the employer's lawyer tell the claimant he had a right to appeal the award?

A: Yes, within limits. The committee held the lawyer need not volunteer advice, but if the claimant voiced dissatisfaction and asked about procedure, candor and fairness required at least stating that the claimant could appeal the board's award and was not bound by the adjusters' position.

Q: Did the lawyer have to disclose that he represented the employer?

A: Yes. Under Canon 6 the committee said the lawyer should disclose all the circumstances of his relationship with the employer to the claimant, while still keeping the employer's confidences and representing it with undivided fidelity.

Q: Could he name another lawyer the claimant asked about?

A: The committee said ordinary courtesy would have him give the name if known, and he could state whether he knew the named attorney to be a good compensation lawyer.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests and disclosure), Canon 19 (candor and fairness), and Canon 15 (fair treatment of adverse parties and witnesses), applied to a lawyer who represents an employer and is questioned by an unrepresented compensation claimant. The modern analogs are ABA Model Rule 4.3 (dealing with an unrepresented person) and Model Rule 1.6 (confidentiality of information).

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• MR 1.6 (confidentiality of information), as the modern analog
• Texas Canons 6, 15, and 19

See also

• TX Ethics Op. 21: An Insurer's Lawyer and Claimants in a Friendly Suit
• TX Ethics Op. 17: Contacting a Represented Party and Interviewing Witnesses

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-18/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_18.pdf

Original opinion text

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

QUESTION PRESENTED

Is an attorney who is retained by an employer having workmen's compensation insurance ethically precluded, upon being questioned by the claimant from advising the claimant to prosecute his claim in the courts by an appeal from the award of the Industrial Accident Board where the claimant is dissatisfied with the views and statement of the insurance company's representatives?
May the attorney so retained by the firm identify by name an attorney about whom the injured party has inquired by asking the retained attorney, "What is the name of that good compensation lawyer in the City of __?"

18 Baylor L. Rev. 201 (1966)

CONFLICTING INTERESTS - DISCLOSURE
An attorney, retained by an employer having workmen's compensation insurance, upon being questioned by the claimant as to the advisability of prosecuting his claim in the courts, should disclose his position with respect to the claim. He must represent his client with undivided fidelity and not divulge the client's secrets or confidences.

CANDOR AND FAIRNESS
If the claimant makes known his dissatisfaction with the insurance company's representative, the employer's attorney should advise him as a matter of courtesy, to seek the advice of counsel. If the claimant inquires the name of an attorney in another town, the name should be divulged, if known. The attorney may state whether or not the named attorney is a good compensation attorney.

Canons 6, 19.

Canon 6 requires the attorney to disclose all of the circumstances of his relations with the employer to the claimant. The attorney is obliged to represent his client with undivided fidelity and not to divulge the client's secrets or confidences. Under Canon 15 he is required to treat adverse witnesses and suitors with fairness and due consideration. Under Canon 19 the attorney is required to deal candidly with the facts in taking statements of witnesses, in drawing affidavits and other documents as well as in the presentation of the case. While the attorney under the stated circumstances is not required to volunteer advice, yet if the claimant makes known his dissatisfaction and requests information as to the procedure to follow, it seems that candor and fairness would require that the attorney at least state that the claimant has the right to appeal from the award of the board, and that he is not required to abide by the statements and attitude of the adjusters for the insurer. The attorney involved in the question should disclose his position with respect to the claim, and as a matter of courtesy advise the claimant that if he is dissatisfied, to seek the advice of counsel. (7-0)
Equally, if the claimant inquires the name of an attorney in another town, it would seem that ordinary courtesy would require that the name be divulged, if known. This could of course be properly qualified with the statement that the informant does not know whether or not the named attorney is a "Good compensation lawyer," or the contrary, if that be the fact. (7-0)

Tex. Comm. On Professional Ethics, Op. 18 (1949)