In Kentucky, may a claimant's lawyer contact an insured tortfeasor over the insurer's objection when no defense lawyer has been appointed for the insured?

Plain-English summary

The opinion responded to a claimant's lawyer who reported that insurance adjusters were "acting as lawyers" and blocking contact with insureds. The Committee answered that a claimant's lawyer may contact the insured tortfeasor over the adjuster's objection when no lawyer has been appointed to represent the insured.

The Committee reasoned that insurance adjusters are not lawyers for purposes of KRPC 4.2, and that even an adjuster admitted to practice may not represent the insured in this capacity (KBA U-36). It followed that a plaintiff's lawyer does not need an adjuster's consent to contact the insured. The Committee qualified its answer: if the plaintiff's lawyer knows the insured is in fact represented by a lawyer in the matter, that lawyer may not be bypassed under KRPC 4.2. In making contact, the lawyer may not state or imply that the lawyer is disinterested and must comply with KRPC 4.1 (truthfulness), 4.3 (dealing with an unrepresented person), and 4.4 (respect for the rights of third persons).

Currency note

This opinion was issued in 1996 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky claimant's lawyer contact an insured tortfeasor when an adjuster objected?

A: Per the opinion, yes, if no lawyer had been appointed for the insured. The Committee concluded an adjuster is not a lawyer under KRPC 4.2, so the lawyer needed no adjuster consent.

Q: Did the no-contact rule ever block the contact?

A: The opinion concluded it applied only if the insured was actually represented by a lawyer in the matter; in that case KRPC 4.2 barred bypassing that lawyer.

Q: What limits applied when making the contact?

A: Per the opinion, the lawyer could not state or imply being disinterested and had to comply with KRPC 4.1, 4.3, and 4.4 in dealing with the unrepresented insured.

Background and rules framework

The opinion interprets KRPC 4.2 (communication with a person represented by counsel; the Model Rule 4.2 counterpart) and the related rules governing dealings with others: KRPC 4.1 (truthfulness in statements to others), KRPC 4.3 (dealing with an unrepresented person), and KRPC 4.4 (respect for the rights of third persons) (Model Rules 4.1, 4.3, 4.4).

Citations and references

Rules of Professional Conduct:

• MR 4.2 / KRPC 4.2 (communication with a represented person)
• MR 4.1 / KRPC 4.1 (truthfulness to others)
• MR 4.3 / KRPC 4.3 (dealing with an unrepresented person)
• MR 4.4 / KRPC 4.4 (respect for the rights of third persons)

Other opinions cited:

• KBA U-36 (1981): an insurance adjuster may not represent the insured

See also

• KBA Ethics Op. E-410: Insurance Defense, Reservation of Rights, and Coverage Conflicts
• KBA Ethics Op. E-409: Disclosure of Legal Billing Information to the Insurer's Outside Auditor

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-393.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-393
Issued: September 1996

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May the lawyer for a claimant contact the insured tortfeasor, over the objection of the insurer, if no lawyer has been appointed to represent the insured tortfeasor?

Answer:

Yes

References:

KRPC 4.2
OPINION

Insurance adjusters are not lawyers for purposes of KRPC 4.2. Even if they are admitted to practice law, they may not represent the insured. See KBA U-36 (1981). It seems to follow, as the night follows the day, that a plaintiff’s lawyer does not need to obtain an insurance adjuster’s consent to talk to anyone. If the plaintiff’s lawyer knows that the insured is represented by a lawyer, then that lawyer may not be bypassed. See KRPC 4.2 (“represented by another lawyer in the matter”). This opinion was issued at the request of a lawyer who says that adjusters are “acting as lawyers” and “blocking contact with insureds”. The request is within the scope of SCR 3.530, since the lawyer is concerned with the ethics of contacting the insured over the adjuster’s purported veto in these circumstances. The lawyer shall not state or imply that the lawyer is disinterested and shall comply with KRPC 4.1, 4.3 and 4.4.
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Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.