Could a lawyer give a client file to the lawyer’s insurer before any claim was made and without client consent?

Plain-English summary

A lawyer reported a potential problem under a claims-made liability policy. No client claim had been made or appeared imminent, but the insurer requested the client file for preventive review without notifying the client.

The opinion said providing the file without client consent would violate Rule 4-1.6. The Rule 4-1.6(b)(2) exception did not apply on those specific facts.

Currency note

This opinion was issued in 1999, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Did mandatory policy reporting authorize handing over the file?

A: No. The answer still required client consent on the described facts.

Q: Did the cited Rule 4-1.6 exception apply?

A: No, according to the opinion.

Background and rules framework

The answer expressly applied Rule 4-1.6 and rejected its subsection (b)(2) exception on the facts.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 990118: Grand Jury Subpoena

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/990053/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney has reported a potential problem with a case to Attorney´s liability insurer, as required under the “claims-made” policy. No actual claim has been made and there was not an immediate indication that the affected client will make a claim. Insurer has requested a copy of the client´s file in order to assist with avoiding further problems. The client would not be notified of the review. May Attorney provide a copy of the file to insurer´s legal counsel without violating client confidentiality?

ANSWER: Under the circumstances Attorney has described, Attorney would violate Rule 4–1.6 by providing the client´s file to Attorney´s liability insurer, without the client´s consent. Based upon the specific facts of this situation, the exception found in Rule 4–1.6(b)(2) does not apply.