Can a claimant's lawyer directly contact the insured tortfeasor before the insurer appoints defense counsel?

Plain-English summary

The inquirer, representing a party claiming damages, asked whether he could directly contact the alleged tortfeasor, who is insured, before that tortfeasor's appointment of counsel, at a time after a claims adjuster had been assigned by the tortfeasor's insurer. The inquirer also asked what effect the tortfeasor's communications with the claims adjuster have on the inquirer's ability to make direct contact.

The committee framed the issue under RPC 4.2 and advised the highest level of caution in deciding whether to contact an adverse party believed liable for damages when that party has already begun negotiations with the insurer about those damages. It explained that in Washington the existence of an attorney-client relationship is determined from the client's perspective, citing In re Disciplinary Proceeding Against Carmick, and turns largely on the client's belief that the relationship exists; where there is a reasonable basis to believe a party may be represented, the lawyer's duty is to determine whether the party is in fact represented. The committee treated the adverse party's reasonable belief that he is represented as a highly material factor, noting that an insured layperson, unfamiliar with the duty to defend and selection of counsel, may reasonably but mistakenly believe he already has counsel, especially once a claims adjuster has been contacted.

The committee added that Washington case law's allowance for what would otherwise be the unauthorized practice of law by claims adjusters (citing Jones v. Allstate Insurance Co.) operates only as a "shield" reflecting a heightened standard of care, not a "sword" that lets adjusters form attorney-client relationships with insureds as to third parties, including for purposes of RPC 4.2. In the committee's view, counsel for a claimant may in many circumstances contact an alleged tortfeasor as an unrepresented party. To the extent the lawyer proceeds under those standards, RPC 4.3 requires the lawyer to clearly express the nature of his role and interest, identifying the client and, where necessary, explaining that the client's interests are opposed to those of the unrepresented person. RPC 4.1 and 8.4 apply to all of the lawyer's communications to third parties, regardless of the recipient.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. RPC 4.1, 4.2, 4.3, and 8.4 kept their numbers in 2006. The opinion relies on Washington case law (including Carmick and Jones v. Allstate) that may have developed since. Subsequent rule amendments or later decisions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and case law before relying on any specific point mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee did not give a flat yes or no. It held that a claimant's lawyer may, in many circumstances, contact an alleged tortfeasor as an unrepresented party, but conditioned that on RPC 4.2's no-contact rule and the highest caution where the insured party has begun dealing with a claims adjuster. The committee tied the analysis to the adverse party's reasonable belief about representation (judged from the client's perspective under Carmick), required the lawyer to determine whether the party is in fact represented when there is a reasonable basis to think so, and treated a claims adjuster's role as not creating an attorney-client relationship. If the lawyer contacts the tortfeasor as unrepresented, RPC 4.3 requires disclosing the lawyer's role and the client's adverse interest, and RPC 4.1 and 8.4 govern all the communications.

Common questions

Q: Can a claimant's lawyer contact the insured tortfeasor directly before defense counsel is appointed?

A: The committee said it may be permissible in many circumstances to contact the tortfeasor as an unrepresented party, but RPC 4.2 requires the highest caution, especially where the insured has begun negotiating with a claims adjuster.

Q: Does the claims adjuster's involvement make the tortfeasor "represented"?

A: No. The committee said a claims adjuster's role does not create an attorney-client relationship with the insured as to third parties; the Jones v. Allstate allowance functions as a shield, not a sword that forms such a relationship.

Q: How is it decided whether the tortfeasor is represented?

A: The committee said the existence of an attorney-client relationship is judged from the client's perspective and turns largely on the party's reasonable belief, citing Carmick; where there is a reasonable basis to believe a party may be represented, the lawyer must determine whether the party is in fact represented.

Q: What must the lawyer do if contacting the tortfeasor as unrepresented?

A: Under RPC 4.3, the committee said the lawyer must clearly express his role and interest, identifying the client and, where necessary, explaining that the client's interests are opposed to those of the unrepresented person; RPC 4.1 and 8.4 apply to all such communications.

Background and rules framework

The opinion interprets several Washington rules that correspond to the Model Rules of the same number: RPC 4.2 (Model Rule 4.2, communication with a person represented by counsel); RPC 4.3 (Model Rule 4.3, dealing with an unrepresented person); RPC 4.1 (Model Rule 4.1, truthfulness in statements to others); and RPC 8.4 (Model Rule 8.4, misconduct). The committee noted that "know" in the rules denotes actual knowledge, which may be inferred from the circumstances. It grounded the representation analysis in Washington decisions on when an attorney-client relationship exists and on the role of insurance claims adjusters, and pointed to the comment to Model Rule 4.3 on identifying the lawyer's client and adverse interest.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a represented person)
• Model Rule 4.3 / Washington RPC 4.3 (dealing with an unrepresented person)
• Model Rule 4.1 / Washington RPC 4.1 (truthfulness in statements to others)
• Model Rule 8.4 / Washington RPC 8.4 (misconduct)

Cases:

• In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311 (Wash. 2002), existence of an attorney-client relationship judged from the client's perspective
• Bohn v. Cody, 119 Wn.2d 357, 832 P.2d 71 (Wash. 1992), cited on determining whether a party is represented
• In re Disciplinary Proceeding Against McGlothlen, 99 Wn.2d 515, 663 P.2d 1330 (Wash. 1983), cited on the same point
• Jones v. Allstate Insurance Co., 146 Wn.2d 291, 45 P.3d 1068 (Wash. 2002), claims adjusters and the unauthorized practice of law

See also

• WA Ethics Op. 1000: Contact With Represented Party
• WA Ethics Op. 1492: Contacting an Opponent's Insurer
• WA Ethics Op. 1990: Death of Opposing Counsel

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1287

Original opinion text

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

Advisory Opinion: 2044
Year Issued: 2003
RPC(s): RPC 4.1, 4.2, 8.4
Subject: Contact with adverse party

The inquirer seeks the opinion of the Committee on whether it is permissible under the Rules of Professional Conduct for him as the attorney for a party claiming to have suffered damages to directly contact the alleged tortfeasor, who is insured, prior to that alleged tortfeasor’s “appointment ... of counsel”. This contact was also stated to be at a time after a claims adjuster was assigned by the alleged tortfeasor’s insurance company to deal with the claim involved. Thus, the inquirer also seeks guidance under the Rules of Professional Conduct as to what effect the alleged tortfeasor’s communication with the claims adjuster will have on the inquirer’s ability to make direct contact with that alleged tortfeasor.

In the context of the RPCs the word “know” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.

In terms of compliance with Rule 4.2, the highest level of caution is advised for the inquirer in deciding whether to make any direct contact with an adverse party believed to be liable for damages to the inquirer’s client when that adverse party has already begun a course of negotiations with his insurer relating to those damages. In Washington State, the attorney client relationship and whether it exists is determined from the perspective of the client. See In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 48 P.3d 311 (Wash. 06/20/2002). The existence of an attorney-client relationship turns largely on the clients belief that it exists. Where there is a reasonable basis for an attorney to believe that a party may be represented, the attorneys duty is to determine whether the party is in fact represented. See In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 48 P.3d 311 (Wash. 06/20/2002) citing Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992) and In re Disciplinary Proceeding Against McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983).

The adverse party’s reasonable belief that he is represented by an attorney is a highly material factor in determining whether representation exists for the purposes of complying with Rule 4.2. It must be taken into consideration that an insured who is an adverse party will frequently be a layperson not very familiar with the implementation of obligation to defend, selection of counsel, and other relevant terms and conditions in insurance coverage agreements. This unfamiliarity may lead such an insured into what arguably may be seen as an objectively reasonable belief that he or she currently has the benefit of counsel, particularly where a claims adjuster has already been contacted and the insured is in the course of dealing amicably with his insurance company.

The allowance made in Washington case law for what apparently would otherwise be the unauthorized practice of law by claims adjusters (See Jones v. Allstate Insurance Co., 146 Wash.2d 291, 45 P.3d 1068 [Wash. 05/09/2002]) exists only in the context of its role as a “shield” for insureds in the form of a heightened standard of care. It is not a “sword” which entitles claim adjusters to form attorney-client relationships with their insureds vis-à-vis third parties. This also holds true with specific regard to the application of Rule 4.2 of the RPC.

In the view of the Committee, counsel for a claimant may, in many circumstances, contact an alleged tortfeasor as an unrepresented party. Thus, to the extent that the inquiring attorney can proceed under the standards outlined above to contact the alleged tortfeasor as an unrepresented party, the nature of the inquirer’s role and interest will need to be clearly expressed. This is a requirement of Rule 4.3. In order to avoid a misunderstanding, an attorney will need to identify the attorney`s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.3 comment [1] (2003). Rules 4.1 and 8.4, of course, will apply to any and all of the inquirer’s communications to third parties in the course of the subject representation, regardless of who is their recipient.