When an insurer's lawyer defends an accident claim in the name of an uninsured or underinsured motorist, may the plaintiff's lawyer interview that defendant without the insurer-lawyer's consent?

Plain-English summary

The opinion addressed two related fact patterns under North Carolina's uninsured- and underinsured-motorist statutes. In the first, the defendant carried no insurance and was not represented by a lawyer, but the uninsured-motorist insurer was defending the claim in the defendant's name under G.S. §20-279.21(b)(3)a. without being named as a party, through its own lawyer (Attorney B). The plaintiff's lawyer (Attorney A) asked whether he could speak with the defendant without Attorney B's knowledge or consent. In the second, the defendant's primary liability carrier had paid its limits and been released from further liability and from the duty to defend under G.S. §20-279.21(b)(4), leaving the defendant unrepresented while the underinsured-motorist insurer (again through Attorney B) defended in the defendant's name.

The opinion concluded that in both situations the plaintiff's lawyer may communicate with the defendant without the insurer-lawyer's consent. It applied Rule 7.4(a), which bars communication only with a person the lawyer knows to be represented by counsel in the matter. The opinion reasoned that although the statutes let an insurer defend in the name of the uninsured or underinsured motorist, the lawyer for the insurer does not represent that individual, so Attorney A need not obtain Attorney B's consent to interview the defendant. The opinion added a limit: because the defendant is unrepresented, the plaintiff's lawyer must comply with Rule 7.4(b) and (c), which prohibit giving an adverse unrepresented party advice other than to secure counsel and prohibit stating or implying that the lawyer is disinterested. The second inquiry was answered the same way by reference to the first.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does an insurer's defense lawyer "represent" the uninsured motorist for no-contact purposes?

A: No. The opinion concluded that although the insurer may defend in the name of the uninsured or underinsured motorist, its lawyer represents the insurer and not the individual, so Rule 7.4(a) does not bar the plaintiff's lawyer from contacting that defendant.

Q: Can the plaintiff's lawyer interview the defendant without the insurer-lawyer's consent?

A: Yes. Because the defendant is unrepresented, the opinion held the plaintiff's lawyer need not obtain the insurer-lawyer's consent to interview the defendant.

Q: Are there limits on how the plaintiff's lawyer deals with the unrepresented defendant?

A: Yes. The opinion required compliance with Rule 7.4(b) and (c): the lawyer may not give the unrepresented defendant advice other than to secure counsel and may not state or imply that the lawyer is disinterested.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4(a), the no-contact rule corresponding to Model Rule 4.2, which reaches only persons known to be represented by counsel in the matter. It read the uninsured- and underinsured-motorist statutes, G.S. §20-279.21(b)(3)a. and (b)(4), as authorizing the insurer to defend in the defendant's name without making the insurer's lawyer counsel for the individual defendant. Because the defendant was therefore unrepresented, the opinion also applied Rule 7.4(b) and (c), which correspond to Model Rule 4.3 on dealing with unrepresented persons.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel)
• MR 4.3 (dealing with unrepresented person)
• North Carolina Rule 7.4(a), (b), (c)

Statutes:

• N.C. Gen. Stat. §20-279.21(b)(3)a. (uninsured-motorist insurer defending in the name of the defendant)
• N.C. Gen. Stat. §20-279.21(b)(4) (underinsured-motorist coverage; release of primary carrier)

See also

• NC Ethics Op. RPC 194: pre-suit letter to an unrepresented defendant
• NC Ethics Op. RPC 219: public-records request to a represented adverse party
• NC Ethics Op. RPC 30: communication with a represented criminal defendant

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-193/

Original opinion text

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

Inquiry #1:

Attorney A represents Plaintiffs in a civil action instituted against Defendant for damages arising out of a motor vehicle accident. Defendant has no motor vehicle insurance and is not represented by a lawyer. Attorney B represents the uninsured motorist insurer ("Insurer") which is defending the claim in the name of the defendant without being named as a party pursuant to G.S. §279.21(b)(3)a. May Attorney A speak to Defendant without Attorney B's knowledge or consent?

Opinion #1:

Yes. Rule 7.4(a) of the Rules of Professional Conduct only prohibits communication with a person known to be represented by counsel in regard to the matter in question. Although G.S. §20-279.21(b)(3)a. allows an insurer to defend in the name of an uninsured motorist, the attorney for the insurer does not represent that individual. For that reason, Attorney A need not obtain the consent of Attorney B in order to interview Defendant. However, in dealing with Defendant, who is unrepresented in this matter, Attorney A must comply with the requirements of Rule 7.4(b) and (c) which prohibit a lawyer from giving advice to an adverse party who is not represented by a lawyer, other than the advice to secure counsel, and also prohibits such a lawyer from stating or implying that he or she is disinterested.

Inquiry #2:

There is motor vehicle insurance covering the vehicle driven by Defendant in the accident but the limits of liability are inadequate to compensate Plaintiffs. The motor vehicle insurer providing primary liability coverage on the underinsured vehicle driven by Defendant pays the limits of liability and, upon application to the court pursuant to G.S. §20-279.21(b)(4), is released from further liability and the obligation to provide a defense. Defendant is therefore unrepresented. The underinsured motorist insurer (represented by Attorney B) is defending the action in the name of Defendant pursuant to G.S. §20-279.21(b)(4). May Attorney A communicate with Defendant without Attorney B's knowledge or consent if Plaintiffs release Defendant from personal liability?

Opinion #2:

Yes. See opinion #1.