Is it improper for a lawyer who works as an insurance claims adjuster to deal directly with an opposing party the lawyer knows is represented by counsel?

Plain-English summary

The committee answered an inquiry about a claims manager for an insurance company who was also a qualified attorney and who undertook to communicate directly with an opposing party about the controversy after learning the party was represented by counsel. It gave two holdings. First, the adjustment of insurance claims by a member of the bar constitutes the practice of law. Second, it is improper for a lawyer to communicate directly with an opposing party known to be represented by counsel about the subject of the controversy without the express consent of that counsel.

On the first point, the committee reasoned that adjusting claims engages a lawyer's professional skill and responsibility, and that it makes no difference that the lawyer is doing what it called a "layman's work" and is not holding himself out as an attorney. A service a layman may lawfully render can still be professional service when rendered by a lawyer. The committee concluded the attorney-adjuster must observe the standards required of a lawyer and remains subject to the Canons and to the same disciplinary measures as other attorneys.

On the second point, the committee applied Canon 9, which provides that a lawyer should not communicate upon the subject of controversy with a party represented by counsel and should deal only with that counsel. It read Canon 9 together with Canon 39 (allowing a lawyer to interview any witness or prospective witness for the opposing side without opposing counsel's consent) and concluded that Canon 39 must be construed to cover only witnesses who are not adverse parties represented by counsel. The committee added that, under Canon 16, a lawyer should restrain a client from arranging such a direct interview, and that Canon 22's duty of candor and fairness to fellow lawyers reinforced the prohibition.

Currency note

This opinion was issued in 1966, during the era of the Canons of Professional Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The no-contact principle the opinion applied survives in modern form as Rule 4.2 of the Oklahoma Rules of Professional Conduct (the analog of ABA Model Rule 4.2), but the rule's current text, comments, and exceptions differ from Canon 9. 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: Is a lawyer who works as an insurance claims adjuster still bound by the rules of professional conduct?

A: Yes. The committee concluded that adjusting insurance claims is the practice of law when done by a member of the bar, so the lawyer-adjuster remains subject to the Canons and to the same discipline as any other lawyer, even when not holding himself out as an attorney.

Q: Could the lawyer-adjuster deal directly with the opposing party because he was acting as an adjuster rather than as a lawyer?

A: No. The committee held that the direct contact was improper regardless, because Canon 9 barred communicating with a represented party about the controversy without that party's counsel's consent.

Q: Did the rule against contacting witnesses change the result, since the opposing party was also a potential witness?

A: No. The committee read Canon 39 (which allows interviewing opposing witnesses) together with Canon 9 and concluded Canon 39 reaches only witnesses who are not adverse parties represented by counsel.

Background and rules framework

The opinion interpreted Canon 9 of the Canons of Professional Ethics, adopted in Oklahoma, which forbade communicating with a represented party about the subject of the controversy and directed the lawyer to deal only with opposing counsel. It harmonized Canon 9 with Canon 39 (interviewing opposing witnesses), and invoked Canon 16 (restraining a client from improper conduct) and Canon 22 (candor and fairness to fellow lawyers). The no-contact principle now appears as Model Rule 4.2 and its Oklahoma analog. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 9 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): no communication with a represented party upon the subject of controversy; deal only with counsel.
• Canon 16: a lawyer should restrain and prevent his client from doing what the lawyer should not do.
• Canon 22: a lawyer's conduct toward other lawyers should be characterized by candor and fairness.
• Canon 39: a lawyer may interview any witness or prospective witness for the opposing side without the consent of opposing counsel or party.

Other opinions cited:

• Oklahoma Bar Association Advisory Opinion 119, and Oklahoma Opinions 16, 22, 39, 57, 75, 124, and 187.
• ABA Informal Opinions Nos. 523 and 524.

See also

• Okla. Bar Ethics Op. 232: A lawyer's interest in an abstract company
• Okla. Bar Ethics Op. 231: Counsel listing in a savings-and-loan statement

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-240/

Original opinion text

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

Adopted March 17, 1966

The following inquiry has been referred to this Committee by the Executive Council of the Oklahoma Bar Association:

Is a claims manager for an insurance company, who is also a qualified attorney, guilty of impropriety when he undertakes to communicate directly with the opposing party upon the subject of controversy, after he has knowledge that the party is represented by counsel?

Syllabus 1. Practice of Law. The adjustment of insurance claims by a member of the bar constitutes the practice of law.

Syllabus 2. Negotiations With Opposite Party. It is improper for a lawyer to communicate directly with an opposing party knowing him to be represented by counsel without the express consent of his counsel.

OPINION

1. The adjustment of insurance claims by a lawyer is professional employment. In performing such a service his professional skill and responsibility are engaged. It makes no difference that the member of the bar is engaged in a layman's work and is not holding himself out as an attorney. The impropriety arises when the business is of such a nature or is conducted in such a manner as to be inconsistent with a lawyer's duties as a member of the bar. Such an inconsistency arises when the business is of a nature that, if handled by a lawyer, would be regarded as the practice of law.

The fact that a layman can lawfully render certain service does not necessarily mean that it would not be professional service when rendered by a lawyer. On the contrary, lawyers are frequently called upon to render such service for the very reason that it can be better rendered by a lawyer.

It is the opinion of this Committee that the business of adjusting insurance claims is the practice of law when done by a lawyer, and as such, the attorney-adjuster must conduct himself with due observance of the standards of conduct required of him as a lawyer, and he is subject at all times to the Canons of Professional Ethics and to the same disciplinary measures as his fellow attorneys.

2. Canon 9 of the American Bar Association's Canons of Professional Ethics provides in part as follows:

"A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. …."

This canon would appear to be a clear pronouncement that the questioned contact is improper, regardless of the view with which the contact is made.

Even should the client suggest a personal interview for the purpose of compromise without the consent of opposing counsel, it would be the duty of his lawyer to endeavor to dissuade him from so doing, as Canon 16 provides that, "A lawyer should use his best efforts to restrain and prevent his clients from doing those things which the lawyer himself ought not to do." Candor and fairness to his fellow lawyer should restrain a lawyer from giving sanction to such a personal interview, as Canon 22 states that, "The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness."

On the other hand, Canon 39 provides that a lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party.

Considered separately, Canons 9 and 39 might seem to produce different results. When read together, however, any apparent conflict is resolved. Though an opposing party is a prospective witness in the pending action, he is also a party represented by counsel. Since Canon 9 expressly condemns any communication with an opposing party, "upon the subject of controversy", Canon 39 must necessarily be construed to refer only to witnesses who are not adverse parties represented by counsel.

Based upon the foregoing, it is this Committee's opinion that it is ethically improper for an attorney-adjuster, even though he is not holding himself out as an attorney, to communicate directly with an opposing party known to him to be represented by counsel without consent of such counsel whether such communication be with a view to interviewing such party as a witness or a view to compromising the subject dispute.

See Canon 9, and Advisory Opinion 119 of the Oklahoma Bar Association, and Opinions 16, 22, 39, 57, 75, 124, and 187, and Informal Opinions No. 523 and 524 of the American Bar Association.