May a California plaintiff's lawyer contact the defendant's liability insurer directly when the defendant has said it will not tender the claim to the insurer?

Plain-English summary

The committee considers a plaintiff's lawyer who learns the defendant carries insurance that may cover the plaintiff's claim. The defendant has told the lawyer it will not tender the claim to its insurer. The lawyer wants to contact the insurer directly.

The committee reads former Rule 2-100(A) literally: the rule bars communication with a party the member knows to be represented by another lawyer in the matter. The committee follows Truitt v. Superior Court (1997), which held that Rule 2-100 reaches only actual knowledge of representation, displacing prior State Bar opinions (1996-145 and 1993-131) that had read the rule more broadly. On the facts, the lawyer does not know the insurer is represented in the matter; the defendant's refusal to tender means no defense counsel has been assigned. The rule therefore does not bar contact.

The committee identifies the more common situation, which is not the inquiry: an insurer that has accepted the defense is generally represented by defense counsel under State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co. (1999) and Rule 2-100(A) bars direct contact in that posture. The committee separately reserves the more complex situation in which an insurer defends under a reservation of rights and the insured has separate Cumis counsel (San Diego Navy Fed. Credit Union v. Cumis Ins. Soc. (1984)), without opining on it.

The committee notes the parallel result reached by the Utah State Bar Ethics Advisory Committee in Opinion 98-07, distinguishing pre-litigation contact with an adjuster from contact after the insurer has entered the litigation. The committee recommends, as a matter of prudence, that the lawyer begin any communication with the insurer by confirming the insurer is not represented by counsel in the matter.

In practice

The opinion holds that, under former California Rule 2-100(A) as it stood in 2002, the plaintiff's lawyer may contact the defendant's insurer directly when the lawyer does not actually know that the insurer is represented in the matter. The committee suggests confirming non-representation at the outset of any communication, but does not require it.

California's professional-conduct rules were revised effective November 1, 2018; former Rule 2-100 corresponds substantially to current Rule 4.2 (communication with a represented person). The committee's analysis predates the 2018 revisions.

Common questions

Q: Can a California plaintiff's lawyer call the defendant's insurance carrier when the defendant won't tender the claim?

A: Per the opinion, yes. Where the lawyer does not actually know the insurer is represented in the matter, former Rule 2-100(A) imposes no bar.

Q: Does the "actually knows" standard mean a lawyer can avoid Rule 2-100 by not asking?

A: Per the opinion, the rule reaches only actual knowledge, following Truitt v. Superior Court (1997), which displaced earlier State Bar opinions that imposed broader inquiry duties. The committee separately recommends as a matter of prudence that the lawyer confirm non-representation at the start of any contact.

Q: What about an insurer that has already accepted the defense?

A: Per the opinion, an insurer that has accepted the defense is generally represented by defense counsel under State Farm v. Federal Ins. Co., and Rule 2-100 bars direct contact in that posture. The committee treats this as outside its inquiry.

Q: What if the insurer is defending under a reservation of rights with Cumis counsel for the insured?

A: Per the opinion, that situation presents different issues and the committee does not address it.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 2-100(A) (anti-contact rule) as construed in Truitt v. Superior Court, 59 Cal.App.4th 1183 (1997), which held that "actually known" representation is the trigger and displaced prior State Bar Formal Opinions 1996-145 and 1993-131 to the contrary. It engages State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co., 72 Cal.App.4th 1422 (1999), on insurer-defendant joint representation, and San Diego Navy Fed. Credit Union v. Cumis Ins. Soc., 162 Cal.App.3d 358 (1984), on Cumis counsel.

Citations and references

Rules of Professional Conduct:

• Former California Rule 2-100(A) (no contact with represented person)

Cases:

• Gregory v. Gregory, 92 Cal.App.2d 343 (1949), communicating with unrepresented party
• In re Inuz, 616 A.2d 233 (Vt. 1992), direct contact to insurer providing defense
• San Diego Navy Fed. Credit Union v. Cumis Ins. Soc., 162 Cal.App.3d 358 (1984), Cumis counsel
• State Farm Mut. Auto. Ins. Co. v. Federal Ins. Co., 72 Cal.App.4th 1422 (1999), insurer represented by defense counsel
• Truitt v. Superior Court, 59 Cal.App.4th 1183 (1997), Rule 2-100 limited to actual knowledge
• Waller v. Kotzen, 527 F.Supp. 424 (M.D. Pa. 1983), plaintiff's counsel violates rule by direct contact to insurer providing defense

Other opinions cited:

• Utah State Bar Ethics Advisory Committee Opinion 98-07: pre-litigation contact with adjuster permitted; post-litigation contact requires confirmation of non-representation
• Cal. State Bar Formal Opinion 1996-145: prior view requiring inquiry where representation suspected (displaced by Truitt)
• Cal. State Bar Formal Opinion 1993-131: prior view (displaced by Truitt)

See also

• LACBA Opinion 490: Ex Parte Communications Directed in Care of Attorney
• LACBA Opinion 472: Contact With Represented Persons (Beneficiaries)

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010598