May a plaintiff's lawyer negotiate settlement directly with an insurance carrier's adjuster when the carrier is represented by defense counsel?

Plain-English summary

A plaintiff's attorney in a wrongful death suit faced an insurance carrier that insisted settlement negotiations be handled through one of its adjusters, who was not a member of The Florida Bar, even though defense counsel represented both the natural-person tortfeasors and the carrier. The attorney asked whether it was unethical to negotiate with the adjuster, or whether he had to deal only with defense counsel.

Consistent with Florida Opinion 63-19, the committee advised that it is not improper for a plaintiff's attorney to negotiate with a carrier's adjusters in settlement after all parties are represented by counsel, provided the negotiations are with the knowledge and consent of defense counsel. It added that this does not preclude plaintiff's counsel from negotiating settlement with the attorney representing the insured, particularly if the insured has interests apart from the insurance company, and it reaffirmed Florida Opinion 65-62 as unaltered by the adoption of the Code of Professional Responsibility.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility and relied on Florida Opinion 63-19, which has since been withdrawn. Communication with a represented person is now addressed by Rule 4-4.2. Treat this page as historical context, not current guidance.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 plaintiff's lawyer deal with the insurer's adjuster instead of defense counsel?

A: Under this opinion, yes, if defense counsel knows of and consents to the negotiations with the adjuster.

Q: Does dealing with the adjuster cut off negotiation with the insured's lawyer?

A: No. The committee said this does not preclude negotiating settlement with the attorney representing the insured, especially where the insured has interests separate from the carrier.

Background and rules framework

The opinion addressed contact with a represented party (the carrier) through a non-lawyer agent, the subject now covered by Rule 4-4.2 on communication with persons represented by counsel. The Model Rule analogue is Rule 4.2. The committee grounded its answer in prior Florida Opinions 63-19 and 65-62.

Citations and references

Rules of Professional Conduct:

• Code of Professional Responsibility [communication with represented persons now in Rule 4-4.2]

Other opinions cited:

• Florida Opinion 63-19 [since withdrawn]: negotiating with adjusters after all parties are represented
• Florida Opinion 65-62 [reaffirmed]

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-33/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-33-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-33
November 16, 1970
Advisory ethics opinions are not binding.
It is permissible for a plaintiff's attorney to negotiate with adjusters of an insurance carrier that is represented by defense counsel in the matter, provided such negotiations are with knowledge and consent of the defense counsel.
Opinions: 63-19, 65-62
Chairman Massey stated the opinion of the committee:
An inquiring attorney advises he represents a client in a wrongful death suit while the defense counsel is representing the active tortfeasors who are natural persons and also the insurance carrier. He is confronted with the insurance carrier requiring that settlement negotiations be handled through an adjuster employed by the insurance carrier who is not a member of The Florida Bar. The question posed is whether it is unethical to negotiate with the adjuster, or, alternatively, whether he is required solely to handle settlement with the defense counsel.
The Committee advises consistent with Florida Opinion 63-19 [since withdrawn] that it is not improper for a plaintiff's attorney to negotiate with adjusters of an insurance carrier in settlement negotiations after all parties to the litigation are represented by counsel, providing such negotiations are with the knowledge and consent of the defense counsel. This does not preclude, nor should it preclude, plaintiff's counsel from negotiating settlement with the attorney representing the insured, particularly if the insured has interests apart from the insurance company.
Florida Opinion 65-62 is also reaffirmed and is not altered by the adoption of the Code of Professional Responsibility.