Can a Texas insurance carrier's attorney send workers' comp claim letters directly to a claimant who already has a lawyer?

Plain-English summary

The executive director of the Texas Workers' Compensation Commission asked whether one of the Commission's procedural rules conflicts with an attorney ethics rule. The procedural rule, 28 Texas Administrative Code section 102.4(b), says that once an insurance carrier, employer, or health care provider learns a claimant has a representative, copies of all written communications about the claim must go to both the claimant and the representative, unless the claimant asks for delivery to the representative only. The ethics rule, Disciplinary Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, bars a lawyer from communicating about the matter with a person the lawyer knows is represented by another lawyer, unless the other lawyer consents or the contact is authorized by law. A carrier's attorney had complained that following the Commission rule (sending the letter to the claimant) seemed to violate Rule 4.02.

The Attorney General concluded that the Commission rule creates an exception to Rule 4.02(a). The key is the rule's own carve-out for contact a lawyer "is authorized by law to do so." Texas courts treat valid agency rules adopted within statutory authority as having the force and effect of legislation, and the opinion saw no reason to think the Commission's rule exceeded its authority or was improperly adopted. The Commission has clear statutory power to adopt procedural rules for workers' compensation claims. So the rule is "law" that authorizes the carrier's attorney to send the written communication to a represented claimant.

The opinion drew support from a Texas case holding that a statute requiring written notice to a defendant created an exception to Rule 4.02, and from an ABA ethics opinion saying the "authorized by law" exception is met by a statute or court rule with the force of law that expressly allows a particular communication. It distinguished a federal case that had rejected a Justice Department rule because that rule was not authorized by statute. The opinion stressed that the Commission rule exists to keep claimants informed and does not give attorneys a way to take advantage of claimants or undermine the attorney-client relationship. Finally, because the rule puts everyone on notice that communications go to both the claimant and the attorney unless the claimant opts out, the opinion found the claimant's counsel gives implied consent to the carrier attorney's mailing.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Note that the functions of the Texas Workers' Compensation Commission were later moved to the Division of Workers' Compensation within the Texas Department of Insurance, so the agency structure described here has since changed.

What the opinion meant for those who asked

The Workers' Compensation Commission (what the opinion held): The opinion agreed with the Commission's own position that its rule 102.4(b) creates an exception to Rule 4.02(a), so the rule does not put carriers' attorneys in conflict with the disciplinary rules.

Attorneys for insurance carriers, employers, and health care providers (what the opinion held): The opinion held that sending copies of written claim communications to a represented claimant, as the Commission rule requires, is authorized by law and also carries implied consent of the claimant's counsel, so it does not violate Rule 4.02(a).

Claimants and their attorneys (what the opinion held): The opinion read the rule as protective of claimants, ensuring they stay informed of the status of their claims, and noted a claimant may still choose to have communications sent only to the representative.

Common questions

Does sending a workers' comp letter to a represented claimant violate the no-contact rule?
Under this opinion, no. The Commission's rule requiring the letters is "law" authorizing the communication, which fits the exception in Rule 4.02(a) for contact a lawyer is authorized by law to make.

Why does an agency rule count as "law" for this purpose?
Because in Texas a valid rule adopted by an agency acting within its statutory authority has the force and effect of legislation. The opinion found the Commission had authority to adopt the procedural rule and no sign it was improperly adopted.

Can a claimant stop the carrier from sending letters directly to them?
Yes. The rule lets a claimant request that communications be delivered to the representative only, in which case the carrier sends them only to the attorney.

What if an agency rule is not actually authorized by statute?
The opinion cited a federal case rejecting a Justice Department rule that was not authorized by statute, so it did not qualify as "authorized by law." The exception depends on the rule being validly grounded in statutory authority.

Background and statutory framework

Disciplinary Rule 4.02(a) bars a lawyer, in representing a client, from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless that lawyer consents or the contact is authorized by law. Tex. Disciplinary R. Prof'l Conduct 4.02(a). The rule, drawn from the Model Rules, aims to prevent lawyers from taking advantage of uncounseled lay persons and to preserve the lawyer-client relationship. Graham v. United States, 96 F.3d 446, 449 (9th Cir. 1996).

The Commission adjudicates workers' compensation claims and has statutory authority to adopt rules. Tex. Lab. Code Ann. ch. 410 (Vernon 1996 & Supp. 2002); § 402.061 (Vernon 1996); § 410.157. Its rules on communications, 28 Texas Administrative Code sections 102.4 and 102.5, include section 102.4(b), which requires that after a carrier, employer, or health care provider is notified a claimant is represented, copies of all written communications to the claimant go to the representative as well, unless the claimant requests delivery to the representative only. 28 Tex. Admin. Code §§ 102.4, 102.5 (2002); § 102.4(a); § 102.4(b); § 102.5(a). The Commission adopted the requirement to keep all participants informed of a claim's status. 24 Tex. Reg. 6488, 6489 (1999).

The opinion relied on the principle that valid agency rules adopted within statutory authority have the force and effect of legislation. Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976); B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex. 1978). It analogized to Lee v. Fenwick, 907 S.W.2d 88 (Tex. App.-Eastland 1995, writ denied), where a statutory notice requirement created an exception to Rule 4.02, and distinguished United States ex rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998), which rejected a Justice Department rule that lacked statutory authorization. The opinion added that, given the rule's notice to all parties, an insurance carrier's attorney who sends a represented claimant copies the claimant has not opted out of has the implied consent of the claimant's counsel.

Citations

Statutes and rules:

• Tex. Disciplinary R. Prof'l Conduct 4.02(a)
• Tex. Lab. Code Ann. ch. 410 (Vernon 1996 & Supp. 2002)
• Tex. Lab. Code Ann. § 402.061 (Vernon 1996)
• Tex. Lab. Code Ann. § 410.157
• 28 Tex. Admin. Code §§ 102.4, 102.5 (2002)
• 28 Tex. Admin. Code § 102.4(a)
• 28 Tex. Admin. Code § 102.4(b)
• 28 Tex. Admin. Code § 102.5(a)
• 24 Tex. Reg. 6488, 6489 (1999)

Cases:

• Graham v. United States, 96 F.3d 446, 449 (9th Cir. 1996)
• Lee v. Fenwick, 907 S.W.2d 88 (Tex. App.-Eastland 1995, writ denied)
• Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976)
• B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex. 1978)
• United States ex rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998)

Other authority referenced: ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 396 (1995).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0572
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0572.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

November 5, 2002

Mr. Richard F. Reynolds Opinion No. JC-0572
Executive Director
Texas Workers' Compensation Commission Re: Whether a Workers' Compensation
Southfield Building, MS-4D Commission rule requiring that written
4000 South IH-35 communications be sent to both a claimant and
Austin, Texas 78704-7491 the claimant's attorney creates an exception to
Rule 4.02(a) of the Texas Disciplinary Rules
of Professional Conduct, which prohibits an
attorney from communicating with a person
who is represented by counsel (RQ-0551-JC)

Dear Mr. Reynolds:

You ask whether a Workers' Compensation Commission (the "Commission") rule requiring that written communications be sent to both a claimant and the claimant's attorney creates an exception to Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, which prohibits an attorney from communicating with a person who is represented by counsel. We conclude that the Commission rule creates an exception to the Rule 4.02(a) prohibition.

Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct prohibits an attorney from communicating with a person who is represented by counsel as follows:

In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02(a), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998) (TEX. STATE BAR R. art. X, § 9); see also id. cmt. 2 ("Paragraph (a) of this Rule is directed at efforts to circumvent the lawyer-client relationship existing between other persons, organizations or entities of government and their respective counsel."). This rule, adopted from the Model Rules of Professional Conduct, is "meant 'to prevent lawyers from taking advantage of uncounselled lay persons and to preserve the integrity of the lawyer-client relationship.'" Graham v. United States, 96 F.3d 446, 449 (9th Cir. 1996) (quoting the Model Rules of Prof. Conduct R. 4.2 cmt. (1992)).

You ask about the interplay of this attorney disciplinary rule and a procedural rule promulgated by the Commission. As a general matter, the Commission is charged with adjudicating workers' claims for compensation for work-related injuries and is authorized to adopt rules. See TEX. LAB. CODE ANN. ch. 410 (Vernon 1996 & Supp. 2002) (adjudication of disputes); id. §§ 402.061 (Vernon 1996) ("The commission shall adopt rules as necessary for the implementation and enforcement of this subtitle."), 410.157 ("The commission shall adopt rules governing procedures under which contested case hearings are conducted."). The Commission has adopted two rules dealing with communications between parties. Rule 102.4 provides "general rules for non-commission communications" and rule 102.5 provides "general rules for written communications to and from the commission." See 28 TEX. ADMIN. CODE §§ 102.4, 102.5 (2002). Rule 102.4(a) provides that all written communications to a claimant shall be sent to the most recent address or facsimile number supplied by the claimant. See id. § 102.4(a). Rule 102.4(b), the rule at issue in your request, provides as follows:

After an insurance carrier, employer, or health care provider is notified in writing that a claimant is represented by an attorney or other representative, copies of all written communications related to the claim to the claimant shall thereafter be mailed or delivered to the representative as well as the claimant, unless the claimant requests delivery to the representative only.

Id. § 102.4(b); see also id. § 102.5(a) ("After the Commission is notified in writing that a claimant is represented by an attorney or other representative, all copies of written communications to the claimant shall thereafter be sent to the representative as well as the claimant, unless the claimant requests delivery to the representative only. However, copies of settlements, notices setting benefit review conferences and hearings, and orders of the Commission shall always be sent to the claimant regardless of representation status.").

The Commission adopted the rule 102.4(b) requirement that claimants receive copies of communications to ensure that all participants are informed regarding the status of a claim. See 24 Tex. Reg. 6488, 6489 (1999) (Tex. Workers' Compensation Comm'n) ("Amendments to subsection (b) require employers and health care providers as well as carriers, when notified by the claimant that the claimant has a representative, to mail or deliver copies of all written communications associated with the claim to the claimant as well as to the claimant's representative. The previous subsection only required carriers to include the claimant's representative in all written communications. These changes will help ensure that all participants are informed regarding the status of a claim."); see also id. at 6499-500 (codified as an amendment to 28 TEX. ADMIN. CODE § 102.4(b)) (Tex. Workers' Compensation Comm'n).

You inform us that an attorney for an insurance carrier has indicated that this rule, which requires an insurance carrier, employer, or health care provider to send copies of all written communications related to a claim to both the claimant and the claimant's attorney, "is placing attorneys who represent carriers in a difficult and unfair position" because compliance with the Commission rule violates Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct.[1] The Commission takes the position that its rule provides an exception to Rule 4.02(a). We agree.

We conclude that the Commission rule is "law" authorizing an attorney to send a written communication to a person who is represented by counsel and that it provides an exception to Rule 4.02(a). Again, Rule 4.02(a) bars communications with clients "unless the lawyer has the consent of the other lawyer or is authorized by law to do so." TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02(a) (emphasis added). In Lee v. Fenwick, 907 S.W.2d 88 (Tex. App.-Eastland 1995, writ denied), appellees argued that notice to appellants' attorney satisfied a statutory notice requirement that "defendant receive written notice" of a claim and that prejudgment interest began to accrue on the date the attorney received notice. Appellees argued that Rule 4.02 precluded their attorney from providing notice directly to the defendants. See id. at 90. The court disagreed, concluding that the statutory notice provision required notice to the defendant and thus provided an exception to Rule 4.02: "Since [the statute] requires written notice to the defendant, an attorney would not violate Disciplinary Rule 4.02 by sending the statutory notice." Id.

A procedural notice or service requirement imposed by an administrative rule rather than a statute may also provide an exception to Rule 4.02(a). Cf. ABA Comm. On Ethics and Prof'l Responsibility, Formal Op. 396 (1995) ("The 'authorized by law' exception to the Rule is also satisfied by a constitutional provision, statute or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel - such as court rules providing for service of process on a party."). In Texas, valid rules and regulations promulgated by an administrative agency acting within its statutory authority have the force and effect of legislation. See Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976). We have no reason to believe that the Commission's rule of procedure exceeds its statutory authority or was not properly adopted. See B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex. 1978) ("Generally, administrative regulations only have the full force and effect of law when: (1) a statute exists which specifically authorizes the issuance of rules and regulations by the agency; (2) the rule or regulation adopted is within the authority of the agency; and (3) the rule or regulation is adopted according to the procedure prescribed by statute.") (holding that federal agency safety manual did not have statutory status because it did not meet these criteria); TEX. LAB. CODE ANN. §§ 402.061 (Vernon 1996) ("The commission shall adopt rules as necessary for the implementation and enforcement of this subtitle."), 410.157 ("The commission shall adopt rules governing procedures under which contested case hearings are conducted."); see also United States ex rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998) (concluding that United States Department of Justice rule purporting to authorize United States attorneys to contact persons represented by counsel was not authorized by statute and concluding that contacts made pursuant to rule were not "authorized by law" for purposes of state disciplinary rule). Furthermore, this procedural rule, which serves to keep claimants fully informed of the status of their claims through the receipt of written communications that must also be sent to their attorneys, see 24 Tex. Reg. 6488, 6489 (1999) (explaining purpose of amendment to rule), does not appear to provide attorneys with an opportunity to take advantage of claimants or to undermine claimants' relationships with their attorneys. Accordingly, we conclude that the Commission rule requiring that written communications be sent to both a claimant and the claimant's attorney authorizes an insurance carrier's attorney to send copies of written communications related to the claim to a claimant who is represented by counsel and creates an exception to Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct.

Finally, we note that Rule 4.02(a) bars communications with clients "unless the lawyer has the consent of the other lawyer or is authorized by law to do so." TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02(a) (emphasis added). The comment to the rule states that "[c]onsent may be implied as well as express, as, for example, where the communication occurs in the form of a private placement memorandum or similar document that obviously is intended for multiple recipients and that normally is furnished directly to persons, even if known to be represented by counsel." Id. cmt. 2. The Commission rule provides all parties with notice that written communications will be sent to both the claimant and the claimant's attorney, unless the claimant opts to have communications sent only to his or her attorney. See 28 TEX. ADMIN. CODE § 102.4(b) (2002). Given this notice, we believe that an insurance carrier's attorney who sends copies of written communications related to a claim to a claimant who is represented by counsel and who has not opted to have the communications sent only to counsel has implied consent of the claimant's counsel to do so.

SUMMARY

A Texas Workers' Compensation Commission rule requiring that written communications related to a claim be sent to both a claimant and the claimant's attorney, see 28 TEX. ADMIN. CODE § 102.4(b) (2002), creates an exception to Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, which prohibits an attorney from communicating with a person who is represented by counsel, see TEX. DISCIPLINARY R. PROF'L CONDUCT 4.02(a) (precluding communications with a person represented by counsel unless lawyer "is authorized by law to do so").

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee