May a claimant's lawyer write directly to the opposing party after the insurer refuses to settle, telling that party to retain counsel?

Plain-English summary

A member asked whether it was improper for the attorney for a personal-injury claimant, who had been unable to obtain a settlement from the opposing party's insurance adjuster, to send the insured a letter advising that the insurance company had refused to settle, that suit would be filed, and that the insured should retain counsel because the claim exceeded the insurance. The committee found nothing improper or unethical in sending such a letter or giving such advice, observing that it was good advice.

One member of the committee wished the opinion limited to circumstances in which the insurance company had not yet retained counsel.

Currency note

This opinion was issued in 1960, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canon 9 of the Canons of Professional Ethics; communications with represented and unrepresented persons are now addressed by Rules 4-4.2 and 4-4.3 of the Rules Regulating The Florida Bar (Model Rules 4.2 and 4.3). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a claimant's lawyer write directly to the opposing party rather than to the insurer?

A: In this opinion the committee found nothing improper in doing so after the insurer's adjuster had refused to settle, where the letter gave notice of intent to sue and advised the party to retain counsel.

Q: Was the committee's conclusion qualified in any way?

A: One member wished the opinion limited to circumstances in which the insurance company had not yet retained counsel.

Background and rules framework

The opinion applied former Canon 9 of the Canons of Professional Ethics. Communications with persons who are represented by counsel and with persons who are not are now addressed by Rules 4-4.2 and 4-4.3 of the Rules Regulating The Florida Bar (Model Rules 4.2 and 4.3). The committee's analysis turned on the propriety of the letter's content, notice of suit and a recommendation that the recipient obtain counsel, with one member tying the conclusion to the absence of counsel for the insurer.

Citations and references

Rules of Professional Conduct:

• Canon 9 [Canons of Professional Ethics; see current Rules 4-4.2, 4-4.3]

See also

• FL Bar Ethics Op. 68-46: Disclosure to an Unrepresented Party on a Quitclaim Deed
• FL Bar Ethics Op. 75-44: Suggesting a Non-Client Witness Seek Legal Advice
• FL Bar Ethics Op. 70-33: Negotiating With Insurance Adjusters

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-59-27/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-59-27-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 59-27
March 4, 1960
Advisory ethics opinions are not binding.
It is proper for an attorney for a claimant who is unable to settle the claim with the opposing party's insurance adjustor to communicate directly with the opposing party by letter, giving notice of intent to file suit and advising the opposing party to retain counsel.
Canon: 9
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar requests a ruling as to whether it is improper for the attorney for a claimant who has been unable to obtain a settlement with an insurance adjustor on a personal injury case to send a letter to the insured stating:
Please be advised that your insurance company has refused to settle the above matter and we are therefore filing suit in same. I advise you to retain counsel for the purpose of handling this matter since our claim is in excess of your insurance.
There is nothing improper or unethical in sending such a letter or giving such advice since it certainly is good advice.
(One member of the Committee wishes this opinion limited to circumstances wherein the insurance company has not yet retained counsel.)