In a workers' comp claim against a self-insured employer, can the injured worker's lawyer directly contact the employer's claims adjuster or third-party administrator who can bind the employer?

Plain-English summary

The inquiry arose in a self-insured workers' compensation setting. Defense counsel represents self-insured employers, and the employer either has its own employee or adjuster administer the claim or hires an independent third-party administrator (TPA). Both the in-house adjuster and the TPA have discretion and authority to bind the employer in making claims-management decisions, and the defense firm gives written notice that it represents the employer's interests. The question was whether the lawyer for the injured worker may contact those entities about the matter when they are known to be represented by counsel or have authority to bind the employer.

The committee answered by applying RPC 4.2: in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the other lawyer's consent or is authorized by law to do so. The committee described the prohibition as mandatory and as forbidding contact absent permission or legal authority, neither of which applied here.

The committee added that a lawyer may not contact current employees of a represented entity who have legal authority to bind the entity in an evidentiary sense, that is, employees with "speaking authority" for the entity. It cross-referenced the Washington Ethics Deskbook, section 10.4.

In practice

Under this opinion, and under RPC 4.2 as it stood in 2006, the controlling facts are whether the person is represented and whether the person can speak for or bind the represented employer. The opinion holds that the worker's lawyer may not contact the in-house adjuster or the TPA where they are represented by the defense firm or hold the authority to bind the employer in making claims-management decisions, because RPC 4.2 reaches employees with "speaking authority" for a represented entity. The opinion grounds the bar in the consent-or-legal-authorization exceptions of RPC 4.2, neither of which the committee found present on these facts.

Common questions

Q: Can a plaintiff's lawyer contact a self-insured employer's claims adjuster directly?

A: Not where the adjuster is represented by the employer's counsel or has authority to bind the employer. The committee concluded RPC 4.2 forbids contacting a "speaking authority" employee of a represented entity absent the other lawyer's consent or legal authorization.

Q: Does the rule apply to an outside third-party administrator the same way?

A: The committee treated the TPA the same as the in-house adjuster, because the inquiry described both as having discretion and authority to bind the employer in claims-management decisions.

Q: What would permit the contact?

A: The committee identified the two exceptions in the rule itself: the consent of the other lawyer, or authorization by law. It found neither applied to the inquiry.

Background and rules framework

The opinion interprets Washington RPC 4.2 (the counterpart to Model Rule 4.2), the no-contact rule, which prohibits a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in the matter, absent that lawyer's consent or legal authorization. The committee applied the rule's reach to employees of a represented organization who have authority to bind the entity, the "speaking authority" employees, and cited the Washington Ethics Deskbook, section 10.4.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a person represented by counsel; reach to "speaking authority" employees of a represented entity)

Other authorities cited:

• Washington Ethics Deskbook, section 10.4 (contact with employees of a represented entity)

See also

• WA Ethics Op. 1643: Contacting an Insurance Adjuster
• WA Ethics Op. 1000: Contact With Represented Party
• ABA Formal Op. 95-396: Communications With Represented Persons

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1555

Original opinion text

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

Advisory Opinion: 2112
Year Issued: 2006
RPC(s): RPC 4.2
Subject: May a lawyer directly contact a claims management agent

FACTS:

Defense counsel represents self-insured employers in worker’s compensation cases. The employer either has its employee/adjuster administer the claim or hires an independent firm to do so, which is known as a third party administrator (TPA). The adjuster/employee and the TPA have the discretion and authority to bind the employer in making claims management decisions. The firm gives written notice in pleadings or by letter of the following:

"This firm represents the interests of and ."

QUESTIONS PRESENTED:

Whether an attorney representing an injured worker in a worker’s compensation claim against a self-insured employer may ethically contact entities about the matter who are known to be represented by counsel or who have discretion and authority to bind the employer in making claims management decisions.

RESPONSE:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. RPC 4.2. The prohibition is mandatory and forbids contact absent permission or legal authority, neither of which apply to this inquiry.

A lawyer may not ethically contact current employees of a represented entity who have the legal authority to “bind” the entity in a legal evidentiary sense, i.e., those employees who have “speaking authority” for the entity. See also, Washington Ethics Deskbook, section 10.4.