Can a plaintiff's lawyer in Colorado contact the defendant's insurance adjuster directly once the insured is represented by defense counsel?

Plain-English summary

Opinion 73 (adopted May 17, 1986) addressed whether a plaintiff's lawyer may communicate with a defendant's insurance company or its adjuster, without the prior consent of defense counsel, when the lawyer knows the insured is represented, even if the adjuster initiates the communication. The opinion addressed only lawyer conduct; it did not reach the conduct of nonlawyers or the broader range of insurance investigative and adjustment practices, and it treated references to plaintiff's and defendant's lawyers as covering all persons of adverse interest, not just litigants.

Applying DR 7-104(A)(1) of the Code of Professional Responsibility (the rule against communicating with a represented adverse party without the prior consent of that party's lawyer), the Committee concluded that the rule prohibits a plaintiff's lawyer from communicating with the adjuster for the defendant's insurance company once the plaintiff's lawyer knows the defendant is represented by counsel, absent the prior consent of the insured's lawyer. The Committee explained, drawing on CBA Formal Opinion 69 (1985) and EC 7-18, that the rule's purpose is to preserve the attorney-client relationship and to prevent opposing counsel from being bypassed, undermined, or impeded. It noted that every state bar to consider the question agreed, and that the ABA had taken an even stricter approach in Informal Opinion 1190 (1971), suggesting defense counsel's consent be obtained in writing before the plaintiff's lawyer communicates with the adjuster. The Committee cited Waller v. Kotzen and Estate of Vafiades v. Sheppard Bus Service as cases finding violations where plaintiff's counsel negotiated directly with the insurer without the consent of the insured's lawyer. A footnote defined "knows" as information of representation received by direct verbal or written communication, or by constructive notice from the pleadings.

Currency note

This opinion was issued in 1986 under the former Colorado Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. The Code's DR 7-104(A)(1) corresponds to current Rule 4.2 (communication with a person represented by counsel). Subsequent rule amendments or later opinions may have changed the analysis. 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 a Colorado plaintiff's lawyer talk to the defendant's insurance adjuster directly?

A: Not once the insured was represented. The opinion concluded that under DR 7-104(A)(1), once the plaintiff's lawyer knows the insurance company has retained counsel for its insured in the matter, the lawyer may not communicate with the adjuster about that matter without the insured's lawyer's prior consent.

Q: Did it matter that the adjuster, not the lawyer, started the conversation?

A: No. The opinion concluded the prohibition applies even where the adjuster initiates the communication; the lawyer still needs the prior consent of the lawyer representing the insured.

Q: When did the plaintiff's lawyer "know" the defendant was represented?

A: The opinion's footnote defined "knows" as information of representation received by direct verbal or written communication, or by constructive notice from the pleadings, citing CBA Formal Opinion 69.

Background and rules framework

The opinion interpreted DR 7-104(A)(1) of the then-governing Colorado Code of Professional Responsibility, which barred a lawyer, during representation, from communicating or causing another to communicate about the subject of the representation with a party the lawyer knows to be represented by counsel, absent that lawyer's consent or authorization by law. EC 7-18 supplied the underlying policy. The modern Model Rule analog is Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• Colo. Code of Professional Responsibility DR 7-104(A)(1); EC 7-18 (governing rules at issuance)
• Colo. RPC 4.2 / Model Rule 4.2 (communication with a represented person; current analog)

Cases:

• Waller v. Kotzen, 567 F. Supp. 424 (E.D. Pa. 1983), plaintiff's lawyer should not negotiate with the insurer without defense counsel's consent
• Estate of Vafiades v. Sheppard Bus Service, Inc., 192 N.J. Super. 301, 469 A.2d 971 (1983), violation of DR 7-104(A)(1) for direct settlement talks with the insurer

Other opinions cited:

• CBA Formal Op. 69 (1985): purpose and "knows" standard of DR 7-104(A)(1)
• ABA Informal Op. 1190 (1971): stricter approach requiring defense counsel's consent

See also

• CBA Formal Op. 111: Second Opinion to a Represented Person
• CBA Formal Op. 93: Ex Parte Contacts with Government Officials
• ABA Formal Op. 91-359: Contacting Former Employees of an Adverse Corporate Party

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_73_2011.pdf