May an insurance carrier's attorney give the carrier a blanket form of consent allowing claimants' attorneys to negotiate settlement directly with the carrier?

Plain-English summary

The Committee was asked whether, during litigation, an attorney for an insurance carrier could provide the carrier a "blanket" form of consent to settlement negotiations between the carrier and claimants' attorneys.

The Committee recalled its Opinion 132, 91 N.J.L.J. 369 (1968), which held that Canon 9 of the Canons of Professional Ethics required claimants' attorneys to refrain from contacting a carrier without express permission from the carrier's attorney. Against that backdrop, the Committee treated the present inquiry as dealing merely with a method of expressing such consent.

The Committee saw no ethical objection to any reasonable means employed to provide a clear manifestation of consent to negotiate directly with claimants' attorneys. Whether the form used was on an individual-case basis or in a blanket style was, in the Committee's view, a matter for determination by the respective carriers' attorneys.

Currency note

This opinion was issued in December 1968, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 9 of the Canons of Professional Ethics, the bar on communicating with a represented party without consent of that party's counsel, which is now treated under RPC 4.2. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a carrier's lawyer give a single blanket consent rather than consenting case by case?

A: Yes. The Committee saw no ethical objection to any reasonable means of clearly manifesting consent and said the choice between blanket and individual form was for the carriers' attorneys to determine.

Q: Why is the carrier's consent needed at all?

A: Under the Committee's Opinion 132, Canon 9 required claimants' attorneys to refrain from contacting a carrier without express permission from the carrier's attorney; this opinion addresses only how that permission may be expressed.

Background and rules framework

The opinion rests on Canon 9 of the Canons of Professional Ethics as applied in Opinion 132: a claimant's attorney may not contact a represented carrier without the carrier's attorney's express permission. The modern analog is RPC 4.2, which bars communication about the subject of the representation with a person the lawyer knows is represented by counsel, absent that counsel's consent. This opinion addresses only the permissible form of that consent.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 9

Other opinions cited:

• NJ ACPE Opinion 132, 91 N.J.L.J. 369 (1968): claimants' attorneys must not contact a carrier without the carrier attorney's permission

See also

• NJ ACPE Op. 144: Demand Letter With Form Summons

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp142-1.html

Original opinion text

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

91 N.J.L.J. 806
December 12, 1968

OPINION 142

Insurance Carriers Form of Consent to Settle

This inquiry is whether or not during litigation an attorney for an insurance carrier may provide his client a "blanket" form of consent to settlement negotiations between carrier and claimants' attorneys.

In our Opinion 132, 91 N.J.L.J. 369 (1968), we held that Canons of Professional Ethics, Canon 9 requires claimants' attorneys to refrain from contact with a carrier without express permission from the carrier's attorney.

This inquiry deals merely with a method of expressing such consent. We see no ethical objection to any reasonable means employed to provide a clear manifestation of consent to negotiate directly with claimants' attorneys. Whether the form used be on an individual case basis or in a "blanket" style is a matter for determination by the respective carriers' attorneys.