Must a lawyer hired by an insurer to defend an insured give the client the Statement of Insured Client's Rights in an employment discrimination case?

Plain-English summary

A member asked whether Rule 4-1.8(j), adopted by the Supreme Court of Florida on April 25, 2002, requires a lawyer retained by an insurer to give the client a copy of the Statement of Insured Client's Rights when defending an insured in an employment discrimination claim under an employment-practices liability policy. The opinion makes the answer turn on the nature of the claim.

Rule 4-1.8(j) requires the Statement to be provided at the commencement of representation when a lawyer undertakes the defense of an insured, at an insurance company's expense, "in regard to an action or claim for personal injury or for property damages, or for death or loss of services resulting from personal injuries based upon tortious conduct." The opinion concludes that if the discrimination claim includes an element of personal injury, the lawyer must provide the Statement under the rule. If there is no personal-injury element, the rule does not require the Statement, but the opinion states the lawyer still must disclose the nature of the attorney-client relationship and the client's rights. Quoting the comment to Rule 4-1.8(j), the opinion notes that establishing the Statement requirement in personal-injury and property-damage cases should not be construed as lessening the lawyer's duty to inform clients of their rights in other circumstances, and that similar needs arise with other insurance, other third-party payors of fees, or multiple clients, as recognized in Rules 4-1.7(c) and 4-1.8(f). In those situations the lawyer should make similar disclosures and may choose how and in what form.

In practice

Under the Florida rules as they stood at the time of this 2002 opinion, the controlling distinction is whether the defended claim carries an element of personal injury. The opinion holds that Rule 4-1.8(j) mandates the Statement of Insured Client's Rights only for the categories the rule lists (personal injury, property damage, death, or loss of services from personal injuries), so an employment discrimination defense triggers the mandatory Statement only when a personal-injury element is present. Per the opinion, where the rule does not apply the lawyer still owes the client disclosure of the relationship and the client's rights, in a form of the lawyer's choosing.

Common questions

Q: I was retained by an insurer to defend an employment discrimination suit. Do I have to hand the insured the Statement of Insured Client's Rights?

A: Per the opinion, only if the discrimination claim includes an element of personal injury. In that case Rule 4-1.8(j) requires providing the Statement at the start of the representation.

Q: What if the discrimination claim has no personal-injury element?

A: The opinion concludes Rule 4-1.8(j) does not require the Statement, but the lawyer should still disclose the nature of the attorney-client relationship and the client's rights, and may choose how and in what form to make those disclosures.

Q: Why does the rule single out personal-injury and property-damage claims?

A: The opinion relies on the rule's text and comment, which establish the Statement requirement for those categories while cautioning that doing so should not be read to lessen the lawyer's duty to inform clients of their rights in other third-party-payor or multiple-client situations.

Background and rules framework

The opinion interprets Rule 4-1.8(j) (Statement of Insured Client's Rights, part of the conflicts and client-relationship provisions of Model Rule 1.8) of the Rules Regulating The Florida Bar, and refers to its comment and to Rules 4-1.7(c) and 4-1.8(f) on informing clients where third parties pay the fee or multiple clients are represented.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Fla. Rule 4-1.8(j) (Statement of Insured Client's Rights)
• Fla. Rule 4-1.7(c) (informed consent where a third party is involved)
• Fla. Rule 4-1.8(f) (compensation from one other than the client)

See also

• CA Ethics Op. 1995-139: Loyalty to the Insured When the Insurer Pays
• CA Ethics Op. 1989-108: Insurer-Insured Conflicts of Interest

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-02-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-02-7.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 02-7
September 13, 2002
Advisory ethics opinions are not binding.
An attorney hired by an insurance company to defend an insured in an employment
discrimination claim must provide a copy of the insured statement of client’s rights only if there
is an element of personal injury involved in the claim. The attorney should make similar
disclosures to the insured even if there is not an element of personal injury, but may choose the
method of disclosure.
RPC: 4-1.8(j)
A member of The Florida Bar has inquired whether Rule 4-1.8(j), adopted by the
Supreme Court of Florida on April 25, 2002, requires an attorney to provide a client with a copy
of the Statement of Insured Client’s Rights when the attorney is hired by an insurance company
to defend an insured in an employment discrimination claim pursuant to a policy for employment
practice liability insurance.
Rule 4-1.8(j) provides as follows:
When a lawyer undertakes the defense of an insured other than a
governmental entity, at the expense of an insurance company, in regard to an
action or claim for personal injury or for property damages, or for death or loss of
services resulting from personal injuries based upon tortious conduct, including
product liability claims, the Statement of Insured Client’s Rights shall be provided
to the insured at the commencement of the representation.
The answer to the inquiry depends on the nature of the discrimination claim that the
lawyer is hired to defend. If the discrimination claim includes an element of personal injury, the
lawyer must provide the insured client with a copy of the Statement of Insured Client’s Rights in
accordance with the rule.
If there is no element of personal injury, the lawyer is not required to provide the insured
client with a copy of the Statement of Insured Client’s Rights. The lawyer still has obligations to
disclose to the client the nature of the attorney-client relationship and the client’s rights. As
stated in the comment to Rule 4-1.8(j):
Establishment of the statement and the duty to provide it to an insured in tort
cases involving personal injury or property damage should not be construed as
lessening the duty of the lawyer to inform clients of their rights in other
circumstances. When other types of insurance are involved, when there are other
third-party payors of fees, or when multiple clients are represented, similar needs
for fully informing clients exist, as recognized in rules 4-1.7(c) and 4-1.8(f).

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Therefore, even if the rule does not require the lawyer to provide the Statement of Insured
Client’s Rights, the lawyer should make similar disclosures to the client. The lawyer may
choose how and in what form to make those disclosures.