When an insurer hires a lawyer to defend its insured, can the insurer direct the lawyer to file a motion the insured has not approved?
Apply this to your situation
This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee addressed a lawyer retained by an insurance company to represent an insured. It concluded that the lawyer must follow the instructions of the client, the insured, and not the insurance carrier.
Applying that principle, the committee concluded that the lawyer could bring a motion for summary judgment at the request of the insurance carrier only if it was in the client's interest to do so and the client consented after full disclosure. The committee based its opinion on RPC 5.4(c).
Currency note
This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 5.4(c) on a third party's interference with a lawyer's professional judgment was later renumbered and amended. Treat this page as historical context, not current guidance.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: When an insurer pays for the defense, whose instructions does the lawyer follow?
A: The client's. The committee concluded that a lawyer representing an insured must follow the instructions of the client, not the insurance carrier.
Q: Can the lawyer file a summary-judgment motion the carrier wants?
A: Only on conditions. The committee said the lawyer could bring the motion at the carrier's request only if it was in the client's interest to do so and the client consented after full disclosure.
Q: What rule did the committee rely on?
A: The committee based its opinion on RPC 5.4(c).
Background and rules framework
The opinion interprets Washington RPC 5.4(c) as it stood in 1986, the rule barring a person who pays a lawyer to serve another from directing or regulating the lawyer's professional judgment (corresponding to Model Rule 5.4(c)). The committee applied it to an insurer-retained defense lawyer, treating the insured as the client whose instructions and informed consent control litigation decisions such as a summary-judgment motion.
Citations and references
Rules of Professional Conduct:
- Washington RPC 5.4(c) (a third party who pays the lawyer shall not direct the lawyer's professional judgment), corresponding to Model Rule 5.4(c).
See also
- WSBA Ethics Op. 951: insurer-paid defense, client identity, and files on withdrawal
- WSBA Ethics Op. 943: insurer-retained counsel and reservation-of-rights confidences
- WSBA Ethics Op. 968: representing someone harmed by a former client
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=85
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 974
Year Issued: 1986
RPC(s): RPC 5.4(c)
Subject: Independent judgment; lawyer retained by insurance company to represent insured
The Committee was of the opinion that a lawyer representing an insured client must follow the instructions of the client, and not the insurance carrier. Therefore, a lawyer could bring a motion for summary judgment at the request of the insurance carrier only if it was in the client's interest to do so and the client consented after full disclosure. The Committee based its opinion upon Rule 5.4(c) of the Rules of Professional Conduct.
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