Can a plaintiff's lawyer send the defendant's insurance carrier a copy of a demand letter addressed to the defendant's attorney?

Plain-English summary

The committee considered whether a plaintiff's lawyer in a personal-injury claim could send the defendant's insurance carrier a copy of a demand letter addressed to the defendant's attorney. The answer was no.

The committee applied DR 7-104(A)(1), which bars a lawyer from communicating, or causing another to communicate, on the subject of the representation with a party the lawyer knows to be represented by counsel, without that counsel's prior consent or legal authorization. It reasoned that the only purpose of copying the carrier would be to bypass the defendant's attorney and relate the demand directly to the company, and that this is a communication within the meaning of the rule.

The committee relied on ABA Informal Opinion C-570 (1962), which found it improper to copy an insurance company's president, claims representative, and the defendant on a letter to defense counsel, and which treated insurance-company employees as parties for purposes of the rule. The committee agreed, adding that until shown otherwise it must be assumed an attorney will convey all settlement offers to his client, and that if a demand were improperly withheld from the carrier the attorney could be dealt with in the appropriate forum.

Currency note

This opinion was issued in 1974 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can a plaintiff's lawyer copy the defendant's insurer on a demand letter sent to defense counsel?

A: No. The committee held that copying the carrier to bypass the defendant's attorney is a communication with a represented party prohibited by DR 7-104(A)(1).

Q: Are insurance-company employees treated as the represented party?

A: Yes. Following ABA Informal Opinion C-570, the committee treated employees of the insurance company as parties for purposes of the no-contact rule.

Q: What if the plaintiff suspects the demand was never relayed to the insurer?

A: The committee said it must be assumed, until the contrary is shown, that the attorney will convey all settlement offers to his client, and that an attorney who improperly withholds a demand may be dealt with in the appropriate forum.

Background and rules framework

The opinion applied DR 7-104(A)(1) of the former Code of Professional Responsibility, which prohibits communicating with a represented party about the subject of the representation without the consent of that party's lawyer. The modern analog is Model Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• DR 7-104(A)(1) (communicating with a represented party); modern analog Model Rule 4.2

Other opinions cited:

• ABA Informal Opinion C-570 (1962), copying insurance-company personnel on a letter to defense counsel is a prohibited communication

See also

• KBA Ethics Op. E-208: Post-Decree Service Rule and the No-Contact Rule
• KBA Ethics Op. E-332: Government Lawyer's Blanket Veto on Employee Contact
• KBA Ethics Op. E-381: Ex Parte Contact With an Adverse Organization's Former Employees

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-095.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-95
Issued: July 1974

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney properly send to a defendant's insurance carrier a copy of a demand letter addressed to defendant's attorney?

Answer:

No.

References:

DR 7-104

OPINION

An attorney representing a plaintiff in a personal injury claim proposes to send to defendant's insurance carrier a copy of a demand letter addressed to defendant's attorney. He inquires whether this would be proper.

The pertinent rule is found in DR 7-104. The material portion of this rule provides as follows:

(A) During the course of his representation of a client a lawyer shall not:

(l) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Upon reflection, the Committee has concluded that the proposed conduct would offend the spirit of this rule. Obviously, the only purpose of sending a copy to the carrier would be to bypass defendant's attorney in relating directly to the company plaintiff's demand. In our view this constitutes a "communication" within the meaning of the rule.

In a related area, the ABA Standing Committee on Professional Ethics decided in Informal Opinion No. C-570 (dated August 23, 1962) that it was improper for an attorney to address a letter to the attorney for defendant's insurance carrier with copies to the insurance company's president, claims representative and the defendant. The stated reason for this letter was, among other things, to advise of a refusal by defendant's attorney to discuss a settlement within policy limits. This, said the Committee, was a communication forbidden by former Canon 9, the predecessor to DR 7-104. It was also noted that for purposes of the rule employees of the insurance company should be treated as parties.

We agree with this view. Until the contrary is shown, it must be assumed that an attorney will convey to his client all offers of settlement. If a demand has been improperly withheld from the insurance carrier, the attorney has of course been remiss in his duty and may be dealt with in the appropriate forum.

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.