In a workers' compensation case, may the employee's lawyer communicate directly with a claims adjuster employed by the insurance carrier when the carrier is a represented party?

Plain-English summary

The Commission was asked how far a lawyer for an employee in a workers' compensation proceeding may communicate directly with an adjuster employed by an insurance carrier that is named as a party and represented by counsel. The Commission concluded that Bar Rule 3.6(j) prohibits such contact where the carrier is a party, is represented by counsel, and counsel has not consented.

Drawing on Opinion No. 94, the Commission recalled that the anti-contact rule prohibits opposing counsel during litigation from communicating with corporate employees who either have power to bind the corporation legally or have responsibility for making decisions on the litigation or assisting the corporation's lawyers in making those decisions, with the classification made case by case. The Commission found that, while it could not resolve on these facts whether a given adjuster is part of the corporation's "control group," an adjuster clearly fits the second category: an adjuster's purpose is to help resolve disputes, works closely with the company's lawyers, and may therefore hold factual or tactical information about the dispute through that association. Unrestricted contact could produce the unfair litigation advantage Rule 3.6(j) is designed to prevent. The Commission therefore interpreted such employees to be within the rule's term "adverse party," so opposing counsel may not contact them, or cause them to be contacted, without the prior consent of the carrier's lawyer. The Commission noted in footnotes that the analysis would likely reach the same result even if the carrier were not a party, that it makes no difference whether the adjuster is a full-time employee or retained on another basis, and that the rule's force is much weaker in a pre-litigation context.

Currency note

This opinion was issued in 1992, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can an opposing lawyer contact the insurance carrier's claims adjuster directly?

A: The opinion concluded no, where the carrier is a represented party and its counsel has not consented. It held the adjuster falls within the anti-contact rule as a person responsible for making or assisting litigation decisions.

Q: Does it matter whether the adjuster personally witnessed the underlying events?

A: The opinion's reasoning turned not on witnessing events but on the adjuster's close association with the carrier's lawyers, through which the adjuster may hold factual or tactical information about the dispute.

Q: Does the rule apply if the adjuster is outside counsel's retained contractor rather than a full-time employee?

A: The opinion stated in a footnote that it makes no difference whether the adjuster is a full-time employee or retained on some other basis; the key fact is the close association with the company's lawyers.

Q: Is the rule weaker before litigation begins?

A: Yes. The opinion noted that, given the rule's purpose of preventing unfair litigation advantage, its application is much weaker in a pre-litigation context.

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(j), the anti-contact ("no-contact") rule barring a lawyer from communicating about the subject of a representation with an adverse party the lawyer knows to be represented, absent that party's counsel's consent. As applied to a corporate party, the Commission (following Opinion No. 94) reads the rule to reach employees who can bind the entity or who make or assist litigation decisions. This corresponds to ABA Model Rule 4.2 (communication with a represented person).

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 (communication with represented persons)
• Maine Bar Rule 3.6(j)

Other opinions cited:

• Maine Professional Ethics Commission Op. 94: anti-contact rule applied to corporate and governmental employees

See also

• Maine Ethics Op. 94: Communication With a Municipality's Employee or Official
• Maine Ethics Op. 136: Contacting an Adverse Party After Litigation
• ABA Formal Op. 91-359: Contacting Former Employees of an Adverse Corporate Party

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89846

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: June 9, 1992

Question

The Commission has been asked for its guidance concerning the extent to which a lawyer for an employee in a workers' compensation proceeding may communicate directly with an adjuster who is employed by an insurance carrier. The carrier is named as a party in the proceeding and is represented by counsel.

Opinion

The Commission concludes that a lawyer for an employee in a workers' compensation proceeding is prohibited by Bar Rule 3.6(j) from communicating with an adjuster employed by a party's insurance carrier, when the carrier is named as a party to the litigation,[1] is represented by counsel, and counsel has not consented. The purposes of the Rule, as it applies to communications with corporate employees, were extensively discussed in Opinion No. 94, both in a litigation and a pre-litigation context. Generally, the Commission concluded that the anticontact rule prohibited communications during litigation by opposing counsel with employees of a corporation who either have the power to bind the corporation legally or have responsibility for making decisions on the litigation or assisting the corporation's lawyers in making those decisions. The Commission indicated that whether a particular employee falls within one of these two categories must be determined on a case-by-case basis. The question presented by this particular case, therefore, is whether an insurance adjuster falls within one of the two categories of employees to whom the anticontact rule applies.

With regard to whether an insurance adjuster is a member of a so-called "control group" of a corporation, the Commission is of the view that, while it is possible for a particular adjuster to be so considered, it is difficult to resolve the issue in this case in the absence of additional facts. The Commission believes, however, that the Rule nevertheless applies, because an insurance adjuster clearly fits within the second category, since he or she is a person responsible for making decisions on litigation, or assisting the corporation's lawyers in making such decisions. The very purpose of such an employee is to attempt to resolve disputes involving the insurance company. Inevitably, such employees work closely with lawyers employed by the company, and therefore may be in the possession of factual or tactical information about the dispute, not because they have actually witnessed the events which gave rise to the litigation, but because of their close association with the insurance company's lawyers.[2] Consequently, unrestricted contact with them on the part of a lawyer representing an opposing party could lead to the kind of unfair advantage in the litigation which Rule 3.6(j) is designed to avoid.[3] Accordingly, the Commission interprets such employees to be within the meaning of the term "adverse party" contained in the Rule, and concludes that opposing counsel may not contact them, or cause them to be contacted, without the prior consent of the lawyer representing their employer.

Footnotes

[1] The logic by which the Commission reaches this conclusion suggests, but the Commission need not decide, that the same result would obtain even if the carrier were not a party.

[2] The Commission notes that, under this analysis, it makes no difference whether the adjuster is a full-time employee of the insurance carrier, or is retained by it on some other basis. Either way, the key fact is his or her close association with the corporation's lawyers, who themselves may be either full-time employees or separately retained counsel.

[3] In view of this purpose, the application of the Rule is much weaker in a pre-litigation context. See generally the discussion contained in the answer to Question No. 2 of Opinion No. 94.