Can a lawyer write directly to an insured opposing party who is dealing through an insurance adjuster but has no lawyer yet?

Plain-English summary

An Illinois lawyer, after dealing with an insurance adjuster for several months, sent a letter directly to the insured before the insured had retained counsel. The letter expressed the lawyer's view that the insurance company had been uncooperative and unconcerned with the insured's interest.

The opinion concluded that Rule 4.2, which bars communicating about the subject of representation with a party the lawyer knows to be represented by another lawyer, did not bar this contact. Drawing on ISBA Opinion No. 192, it recognized that an insured represented by counsel retained through the insurer is "represented" for purposes of Rule 4.2; but here the insured was unrepresented when the letter was sent and only later obtained counsel.

The opinion concluded that even when communicating with an unrepresented party, a lawyer is restricted: under Rule 4.3 the lawyer may not state or imply that the lawyer is disinterested, and under Rule 4.1(a) the lawyer may not make a statement of material fact or law the lawyer knows or should know is false. It concluded that the letter, which conveyed the lawyer's personal belief about the adjuster, did not violate Rule 4.1(a), while observing that the lawyer should take care that such an expression does not appear to be a statement of fact.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rules 4.1, 4.2, and 4.3), while noting the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer contact an opposing insured directly if the insured has no lawyer yet?

A: The opinion concluded that Rule 4.2 did not bar the contact because the insured was unrepresented at the time; the no-contact rule applies only once the party is represented in the matter.

Q: Does dealing with the insurance adjuster make the insured "represented" for no-contact purposes?

A: The opinion concluded it does not by itself; an insured becomes "represented" under Rule 4.2 when counsel (including counsel retained through the insurer) is engaged, which had not yet happened here.

Q: What limits apply when writing to the unrepresented party?

A: The opinion concluded that under Rule 4.3 the lawyer must not imply being disinterested and must give no advice, and under Rule 4.1(a) must not make a false statement of material fact or law.

Background and rules framework

The opinion interpreted Rule 4.2 (the no-contact rule for represented parties; Model Rule 4.2), Rule 4.3 (dealing with an unrepresented person; a lawyer may not state or imply disinterestedness; Model Rule 4.3), and Rule 4.1(a) (truthfulness in statements to others; Model Rule 4.1).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons) / Illinois Rule 4.2
• Model Rule 4.3 (dealing with unrepresented persons) / Illinois Rule 4.3
• Model Rule 4.1 (truthfulness in statements to others) / Illinois Rule 4.1(a)

Other opinions cited:

• ISBA Opinion No. 192: direct contact with a party represented by insurer-retained counsel is improper
• ISBA Opinions Nos. 86-11 and 88-3: limits on dealing with unrepresented parties

See also

• ISBA Ethics Op. 23-04: Pro Se Lawyer Contacting an Opposing Party Represented in One Matter
• ISBA Ethics Op. 14-02: Tendering Plea Agreements to Unrepresented Defendants
• ISBA Ethics Op. 13-09: Direct Communication With Government Representatives

Source

• Landing page: https://www.isba.org/ethics/opinions/9314