Can an employer's lawyer send a workers'-comp light-duty job offer directly to a represented employee?

Plain-English summary

The Committee considered how SCR 182 (Nevada's no-contact rule) interacts with NAC 616.085(1), a workers'-compensation regulation requiring an employer to make a written offer of light-duty employment to an injured employee. It addressed three variations: an offer sent by the employer's counsel directly to a represented employee; an offer drafted by counsel but sent on the employer's letterhead with a copy to the employee's attorney; and the same offer sent without a copy to the attorney.

SCR 182, identical to ABA Model Rule 4.2, bars a lawyer representing a client from communicating about the matter with a person the lawyer knows to be represented by counsel, absent the other lawyer's consent or legal authorization. The Committee reasoned that NAC 616.085 requires the employer (not the employer's lawyer) to communicate the offer, and that the regulation does not authorize the employer's counsel to contact the represented employee. The fact that counsel drafted an offer sent on the employer's letterhead makes no material difference; the employer's own delivery satisfies the regulation.

The Committee relied on Holiday Inn v. Barnett, where the Nevada Supreme Court treated an employer's attorney's direct communications with a represented claimant as forbidden by SCR 182's predecessor and called the conduct "reprehensible," and on ABA opinions reaching the same result for plea-bargain and settlement letters copied to a represented party. It concluded that mailing the light-duty notice to the represented employee without a copy to known counsel violates SCR 182, and that after the employer's initial required communication, all further correspondence and negotiation must be handled between counsel unless an SCR 182 exception applies.

Currency note

This opinion was issued in 1995, before Nevada's 2006 adoption of the current Nevada Rules of Professional Conduct (the renumbered Rules 1.0 et seq. that replaced the former Supreme Court Rules) and the related Ethics 2000-based revisions. The no-contact rule is now Rule 4.2. The cited workers'-compensation statutes and regulations (the former NRS 616 chapter and NAC 616.085) have since been recodified. Treat this page as historical context, not current guidance. Verify against current rules and the current statutes before relying on any specific point mentioned here.

Common questions

Q: Can an employer's lawyer mail a light-duty job offer straight to a represented injured worker?

A: No. The opinion concluded that doing so without sending a copy to the worker's known counsel violates SCR 182, Nevada's no-contact rule.

Q: But doesn't the regulation require the offer to go to the employee?

A: Yes, and the opinion says the employer itself may and must deliver the offer; the regulation does not authorize the employer's counsel to contact the represented employee, and the employer's own delivery satisfies NAC 616.085.

Q: What about communications after the initial offer?

A: Per the opinion, once the employer's initial required communication is complete, all further correspondence and negotiation must be handled between counsel unless an SCR 182 exception applies.

Background and rules framework

The opinion interprets former SCR 182 (communication with a person represented by counsel, identical to Model Rule 4.2) against NAC 616.085(1)'s requirement that an employer make a written light-duty offer to an injured employee, reading the regulation as authorizing only the employer, not its lawyer, to make that contact.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / former Nev. SCR 182 (communication with a represented person)

Statutes:

• Nev. Admin. Code 616.085(1) (employer's written light-duty employment offer)

Cases:

• Holiday Inn v. Barnett, 103 Nev. 60, 732 P.2d 1376 (1987) (employer's attorney's direct contact with represented claimant forbidden)

Other opinions cited:

• ABA Informal Op. 1373 (1976) and ABA Informal Decision 570 (1962) (copying a represented party on counsel's letter violates the no-contact rule)

See also

• NV Ethics Op. 8: contacting a represented person in a personal dispute
• NV Ethics Op. 23: defense lawyer discouraging a victim/witness from testifying

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/opinion_22.pdf