Could injury counsel contact a defendant directly about a coverage case while that defendant had counsel in the underlying tort case?

Plain-English summary

A plaintiff's lawyer in an injury case asked about contacting the tort defendant in a separate insurer coverage declaration action against both the defendant and the lawyer's client. The tort defendant had counsel for the injury case but none for the coverage case.

The opinion allowed direct contact while the defendant lacked counsel in the coverage action. Once the defendant obtained counsel for that action, Rule 4-4.2 would apply even if that lawyer had not yet entered an appearance.

Currency note

This 1994 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Did counsel in the tort case bar contact about the separate coverage case?

A: No, while the defendant had no lawyer in the coverage action.

Q: When would Rule 4-4.2 apply to the coverage discussion?

A: Once the defendant obtained counsel in the coverage case, regardless of whether counsel had appeared formally.

Background and rules framework

The opinion applied Missouri Rule 4-4.2 by the subject of representation, distinguishing the tort case from the separate coverage action.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-4.2

See also

• Missouri Informal Op. 950161: Copying represented party
• Missouri Informal Op. 950012: Prejudgment notice

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/940199/

Original opinion text

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

QUESTION: Attorney represents plaintiff in a personal injury case. The insurance company for the defendant has also brought a declaratory judgment action against its insured and Attorney´s client seeking a declaration that the defendant was not insured. The defendant is not represented in the declaratory judgment action. The defendant is represented in the underlying tort action. May Attorney contact the defendant directly regarding the issues involved in the declaratory judgment action? ANSWER: Yes. Once the defendant does obtain counsel in the declaratory judgment case, Rule 4–4.2 will apply although the new counsel may not have entered an appearance yet.