Can an injured plaintiff's lawyer contact the unrepresented at-fault driver to take a statement and urge him to press his insurer to pay policy limits?

Plain-English summary

Attorney A represented Client X, who was seriously injured in a car accident the proposed defendant Y appeared clearly liable for. Y was insured by Company Z for the minimum $25,000 limit, and the injuries appeared to justify a verdict at or above that limit. Negotiations with Z had reached a standstill, and Y's individual estate was modest and possibly not worth pursuing given exemption statutes. The inquiry asked whether Attorney A could contact Y to take a statement, suggest Y urge Z to settle within policy limits (which would appear to be in Y's interest), or suggest Y consult an attorney who might advise Y to demand Z pay its limits.

The opinion concluded that Rule 7.4 forbids a lawyer from communicating about the subject of the representation with a party the lawyer knows to be represented by another lawyer, but there is generally no prohibition on communicating directly with an unrepresented adverse party. Because Y was not currently represented, Attorney A may communicate with him about his statement on the accident. However, Rule 7.4(b) prohibits a lawyer from giving advice to an unrepresented person, other than to secure counsel, where that person's interests have a reasonable possibility of conflicting with the client's. Y's interests clearly had a possibility of conflict with Client X's, so Attorney A should not advise Y to demand that Z settle for the policy limits. Attorney A may, however, advise Y to consult an attorney and may communicate to Y, as an unrepresented adverse party, that his client's position is that Y is totally at fault, and may make a demand or propose a settlement.

Currency note

This opinion was issued in 1986, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rule 7.4 on communicating with represented and unrepresented persons) have since been renumbered and revised (the corresponding Model Rules are 4.2 and 4.3). 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 Treat this page as historical context, not current guidance.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 a plaintiff's lawyer take a statement from the unrepresented at-fault driver?

A: Yes. The opinion concluded there is generally no prohibition on communicating directly with an unrepresented adverse party, so the lawyer may communicate with Y about his statement on the accident (Rule 7.4).

Q: Can the lawyer advise the unrepresented driver to push his insurer to pay policy limits?

A: No. The opinion concluded that under Rule 7.4(b) the lawyer may not advise an unrepresented person whose interests may conflict with the client's, beyond advising him to get counsel.

Q: What can the lawyer tell the unrepresented driver?

A: The opinion concluded the lawyer may advise Y to consult an attorney, may state the client's position that Y is totally at fault, and may make a demand or propose a settlement.

Background and rules framework

The opinion applied North Carolina Rule 7.4 on communication with represented persons (corresponding to Model Rule 4.2) and Rule 7.4(b) on dealing with unrepresented persons (corresponding to Model Rule 4.3). The analysis turned on Y's unrepresented status, which permitted direct contact, and on the conflict between Y's and the client's interests, which barred the lawyer from advising Y beyond telling him to seek counsel.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 7.4 (communication with a represented party)
• North Carolina Rule 7.4(b) (advising an unrepresented person)
• MR 4.2 (communication with represented persons); MR 4.3 (dealing with unrepresented persons)

See also

• NC Ethics Op. RPC 39: contacting an adverse party's insurer
• NC Ethics Op. RPC 21: demand letter for an unnamed client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-15/

Original opinion text

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

Inquiry:

Attorney A represents Client X, who was seriously injured in an automobile accident. To Attorney A, it appears that proposed defendant Y is clearly liable for the accident. Defendant Y is insured by Z insurance company for the minimum limits of $25,000.00. The injuries appear to be such as to justify a verdict or judgment at or above the $25,000.00 insurance limit. Negotiations have gone on between Attorney A and representatives of Company Z and have reached a standstill such that Attorney A feels he may be required to file suit against Defendant Y unless Company Z is forthcoming in paying their entire limits of liability. Investigation reveals that proposed Defendant Y has a modest estate although, given the exemption statutes in force, it may be questionable as to whether pursuing proposed Defendant Y individually would be fruitful.

May Attorney A ethically contact proposed Defendant Y and take a statement from him? Additionally, may Attorney A ethically suggest that Defendant Y demand or strongly urge Company Z to settle as long as the settlement is at or within policy limits, as it would appear to be in Y's interest to do so? May Attorney A alternatively suggest that proposed defendant Y contact an attorney and indicate that that attorney may give Y advice to demand that company Z pay their policy limits?

Opinion:

Rule 7.4 forbids a lawyer representing a client to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter. However, there is no prohibition generally on communicating directly with an adverse party who is not represented by counsel. Thus, since it appears that proposed Defendant Y is not currently represented by counsel, Attorney A may communicate with him concerning proposed Defendant Y's statement about the automobile accident. Additionally, Rule 7.4(b) prohibits a lawyer from giving advice to a person not represented by a lawyer, other than advising that person to secure counsel, where the interests of the person have a reasonable possibility of being in conflict with the interests of the lawyer's client. Clearly, the interests of proposed Defendant Y have a possibility of being in conflict with the interests of Attorney A's Client X. Attorney A should not advise proposed Defendant Y to demand that insurance company Z settle the claim for the limits of the policy. However, he may certainly advise proposed Defendant Y to consult an attorney in connection with the claim and certainly may communicate with proposed Defendant Y, as an adverse party not represented by counsel, that his client's position is that Y is totally at fault and may make a demand or propose a settlement.