NYSBA 2010-10-27

May a lawyer for an insurance carrier send forms to a represented workers' compensation claimant, or have non-lawyer claims adjusters do it, without the claimant's lawyer's consent?

Short answer: A carrier's lawyer may not send forms directly to a known-represented claimant without the claimant's counsel's consent, but may direct non-lawyer adjusters to send them after giving reasonable advance notice; merely designing forms sent by non-lawyers to claimants as a class does not trigger Rule 4.2.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 846: No-contact rule and insurer contacts with represented claimants

Short answer: A carrier's lawyer may not send forms directly to a claimant the lawyer knows is represented without that counsel's consent, but may direct non-lawyer adjusters to send them after reasonable advance notice, and merely designing forms sent by non-lawyers to claimants as a class does not trigger Rule 4.2.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A workers' compensation carrier uses non-lawyer claims adjusters to investigate and manage claims, and routinely sends claimants forms about work status and benefit entitlement; the carrier knows which claimants are represented because counsel must file a notice of retainer with the Board. The carrier may later use the form information against the claimant. The opinion addresses, under Rule 4.2, several variations on who sends the form and what role the carrier's lawyer plays.

The opinion frames the analysis around Rule 4.2's two subparagraphs. Rule 4.2(a) bars a lawyer from communicating, or causing another to communicate, about the matter with a person the lawyer knows is represented, absent the other lawyer's prior consent. Rule 4.2(b) permits a lawyer to "cause a client" to communicate with a represented person, and to counsel the client about it, provided the lawyer gives "reasonable advance notice" to the represented person's counsel. The opinion also notes at the outset that Rule 4.2 does not apply if the lawyer is "authorized by law" to make the contact, and it expressly leaves open whether the Workers' Compensation Board's own regulations authorize such contacts, calling that a question of law beyond its jurisdiction.

Applying these provisions: (a) if the carrier's lawyer personally sends a form to a known-represented claimant, Rule 4.2(a) prohibits it absent the claimant's counsel's consent. (b) and (e) If the lawyer directs the carrier's non-lawyer agents to send a form to a specific represented claimant, Rule 4.2(b) applies and the lawyer may proceed without prior consent so long as the lawyer gives reasonable advance notice. (f) "Reasonable advance notice" is measured by the rule's purpose, allowing the claimant's lawyer enough time, under the circumstances, to advise the client before the contact; the opinion endorses the guidance of former EC 7-18.

For the harder questions, (c) and (d), the opinion concludes that a lawyer's designing or helping design a form to be sent by non-lawyers to claimants generally (some of whom may be represented) does not amount to "causing" the carrier to communicate with the represented claimants, drawing on N.Y. State 828 (2009) on supervision and control of non-lawyer investigators. The opinion reasons that a contrary rule would chill carriers from seeking legal advice about mass communications based merely on the statistical likelihood that some recipients are represented. Rule 4.2 is triggered only when the lawyer is involved in sending to a specific claimant the lawyer knows is represented. A footnote adds that complying with Rule 4.2(b) also means no Rule 8.4(a) violation, and cautions that a lawyer should not design a form to seek privileged information or to discourage represented claimants from consulting counsel.

In practice

Under this opinion, a carrier's lawyer who knows a claimant is represented cannot personally send the claimant a form without counsel's consent, but can direct non-lawyer adjusters to send it after giving the claimant's counsel reasonable advance notice (time enough for counsel to advise the client). The opinion holds that designing forms for non-lawyers to send to claimants as a class, including a computerized mailing without human intervention, does not trigger Rule 4.2 unless the lawyer is involved in sending to a specific claimant the lawyer knows is represented.

Common questions

Q: Can an insurance carrier's lawyer mail a form directly to a claimant who has a lawyer?

A: No, not without consent. The opinion concludes Rule 4.2(a) prohibits the carrier's lawyer from sending the form directly to a claimant the lawyer knows is represented, absent the claimant's counsel's prior consent.

Q: Can the lawyer have non-lawyer adjusters send the form instead?

A: Yes, with notice. The opinion concludes that under Rule 4.2(b) the lawyer may direct non-lawyer adjusters to send the form after giving the claimant's counsel reasonable advance notice.

Q: What counts as "reasonable advance notice"?

A: The opinion ties it to the rule's purpose: notice given in a manner and with enough time, under the circumstances, for the claimant's lawyer to advise the client before the contact, consistent with former EC 7-18.

Q: Does a lawyer trigger Rule 4.2 just by designing the forms the carrier mass-mails?

A: No. The opinion concludes that designing or helping design forms sent by non-lawyers to claimants generally, even by an automated process, does not by itself "cause" communication with represented claimants; Rule 4.2 applies only when the lawyer is involved in sending to a specific claimant known to be represented.

Background and rules framework

The opinion interprets New York Rule 4.2, the "no-contact" rule, which corresponds to Model Rule 4.2 (communication with a person represented by counsel). New York's Rule 4.2 has two parts: subparagraph (a) prohibits communicating or causing another to communicate with a known-represented party absent consent or legal authorization, and subparagraph (b) (which has no direct Model Rule analogue) permits a lawyer to cause a client to communicate with a represented person on reasonable advance notice. The opinion also references Rule 8.4(a) and the predecessor Code provision DR 7-104(A)(1). The opinion notes related authority on whether "party" reaches represented non-party witnesses, citing Grievance Comm. for Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995), and N.Y. State 735 (2001) and N.Y. State 785 (2005).

Citations and references

Rules of Professional Conduct:

MR 4.2 (communication with represented persons)
MR 8.4 (misconduct)
NY Rule 4.2(a), (b) (no-contact rule; client-to-client contact on notice)
NY Rule 8.4(a) (violating the Rules through the acts of another)
Former DR 7-104(A)(1); former EC 7-18 (predecessor Code provisions)

Cases:

Grievance Comm. for Southern District of New York v. Simels, 48 F.3d 640 (2d Cir. 1995), interviewing a witness represented in a related matter

Other opinions cited:

N.Y. State 828 (2009): when a non-lawyer investigator's conduct is imputed to supervising counsel
N.Y. State 735 (2001); N.Y. State 785 (2005): reach of "party" in noncriminal matters

Source

Landing page: https://nysba.org/ethics-opinion-846/