When the same insurer covers both the plaintiff and the defendant, can the defense lawyer use the plaintiff's insurance file that the carrier forwards to use against the plaintiff?

Plain-English summary

The committee considered a personal injury suit in which the same carrier insured both the plaintiff and the defendant, and the carrier forwarded the plaintiff's insurance file to the defense attorney it had hired. It first observed, as a matter of law outside its province, that in most cases information an insured gives the insurer is privileged as material prepared in anticipation of litigation, citing Kandel v. Tocher and related authority. To the extent the communications are protected, the committee held that defense counsel may not advise or participate in breaching the carrier's duty to protect that privilege under DR 7-102(A)(7) and (8), because a lawyer may not use information obtained in violation of law.

The committee then addressed the first-party, no-fault setting, where it may be argued no privilege arises because the insured had no expectation the carrier was acting as a defense agent. Even where it is uncertain whether disclosure would be illegal, the committee held that defense counsel should not participate in avoiding the rules of discovery (EC 7-25). It relied on Juskowitz v. Hahn, which invoked Canon 9 to suppress statements and warned that a carrier may not use its medical-payments obligation as a means of clandestine discovery. Obtaining the plaintiff's file from the insurer without the plaintiff's consent, for use against the plaintiff, is "back-door" discovery that raises at least the appearance of impropriety under EC 7-25 and EC 9-2.

The committee found the conduct also carries an element of deceit within DR 1-102(A)(4): an insured who provides no-fault information to protect a first-party claim has no reasonable expectation that the same information will be turned against the insured by another party, and would likely have obtained counsel first if such use were anticipated. Reading DR 1-102(A)(4) to impose duties of fairness and candor, the committee concluded that using information that becomes available only through the fortuity of coincidental coverage fails those standards. It added that special care is required because defense counsel's fee is paid by a third party (DR 5-107(B); EC 5-23), so counsel should not condone disclosure that raises the appearance of collusion with the carrier. Absent a judicial determination that the information is discoverable, the committee answered the question no.

Currency note

This opinion was issued in 1988, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009 (dishonesty and deceit now appear at Rule 8.4(c), the rights of third persons at Rule 4.4, and third-party payment at Rule 1.8(f)). 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 defense counsel use the plaintiff's file sent over by a shared insurer?

A: No. The committee held that using the plaintiff's insurance file obtained from the carrier to circumvent discovery is improper, answering the question in the negative.

Q: What makes the practice improper?

A: The committee held it is unfair back-door discovery that raises the appearance of impropriety under Canon 9 and EC 9-2, involves deceit within DR 1-102(A)(4) because the insured did not expect the information to be used against him, and may breach a privilege counsel cannot help violate under DR 7-102(A)(7) and (8).

Q: Does it matter that the information is no-fault, first-party material?

A: Not for the ethics analysis. The committee held that even where it is uncertain whether disclosure would be illegal, counsel should not participate in avoiding the rules of discovery absent a judicial determination that the information is discoverable.

Background and rules framework

The opinion interpreted the New York Code provisions on the appearance of impropriety (Canon 9; EC 9-2), fairness and candor (DR 1-102(A)(4)), counsel's duty not to use unlawfully obtained information or assist illegal conduct (DR 7-102(A)(7), (8); EC 7-25), and the caution required when a third party pays the fee (DR 5-107(B); EC 5-23). The closest Model Rule analogues are Rule 8.4(c) (dishonesty and deceit), Rule 4.4 (respect for the rights of third persons), and Rule 1.8(f) (compensation from a third party).

Citations and references

Rules of Professional Conduct:

• MR 8.4(c) (conduct involving dishonesty, deceit, or misrepresentation)
• MR 4.4 (respect for the rights of third persons)
• MR 1.8(f) (compensation from one other than the client)
• NY Canon 9; DR 1-102(A)(4); DR 5-107(B); DR 7-102(A)(7), (8); EC 5-23, 7-25, 9-2

Cases:

• Kandel v. Tocher, 22 A.D.2d 513 (1st Dep't 1965): insured-insurer communications treated as litigation-related
• Juskowitz v. Hahn, 56 Misc. 2d 647 (Sup. Ct. Nassau Co. 1968): Canon 9 used to bar a carrier's clandestine discovery

Other opinions cited:

• N.Y. State 73 (1968): care required where a third party pays the lawyer's fee
• N.Y. State 126 (1970); N.Y. State 545 (1982): a lawyer may not participate in breaching a protected privilege

See also

• NY State Bar Op. 605: A public defender's office facing a former client as a prosecution witness
• NY State Bar Op. 601: A settlement bonus paid by the adverse party

Source

• Landing page: https://nysba.org/opinion-596/