I was hired by an insurer to defend its insured. The insured wants copies of my letters to the insurer's adjuster that contain my analysis of liability and settlement. Do I have to hand them over?

Plain-English summary

The inquiring attorney had been retained by an insurance company to represent its insured in a tort action. The insured had retained a second attorney to handle exposure in excess of the policy limits, and asked the inquiring attorney for copies of letters the attorney had written to the insurer's adjuster containing the attorney's mental impressions and legal analysis of liability, damages, and settlement negotiations. The attorney asked whether the Rules obligated him to provide those documents to the insured.

The panel concluded that they did. A lawyer hired by an insurer to represent its insured must represent the insured as his client with undivided loyalty, citing ABA Formal Opinion 96-403 and a Florida opinion; the insurance contract does not define the lawyer's ethical duties to the client. The panel noted that the attorney had made clear he was retained to represent the insured, and that whether he also represented the insurer was not fundamental to the inquiry. Under the Comment to Rule 1.7, a lawyer may be paid by a source other than the client if the client consents and the arrangement does not compromise the lawyer's loyalty, so any relationship with the insurer could not compromise the attorney's obligations to the client-insured.

Rule 1.4 requires a lawyer to keep the client reasonably informed and to promptly comply with reasonable requests for information. The panel concluded the insured's request for copies of letters analyzing his defense (liability, damages, and settlement) was reasonable, notwithstanding that they were directed to the insurer's adjuster rather than to the insured. Quoting the Comment to Rule 1.4 on fulfilling reasonable client expectations for information, the panel concluded the attorney had an ethical obligation to provide the client-insured with the requested documents.

Currency note

This opinion was issued in April 1998, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.4 and 1.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 mentioned here.

Common questions

Q: Who is the client when an insurer hires a lawyer to defend its insured?

A: The insured. The opinion stated that a lawyer hired by an insurer to represent its insured must represent the insured as the client with undivided loyalty, and that the insurance contract does not define the lawyer's ethical duties.

Q: Must the lawyer give the insured copies of letters sent to the insurer's adjuster?

A: Yes, on these facts. The opinion concluded the insured's request was reasonable under Rule 1.4 even though the letters were addressed to the adjuster, because they contained the attorney's analysis of the insured's defense.

Q: Does the insurer paying the fee change the lawyer's duty to the insured?

A: No. The opinion invoked the Comment to Rule 1.7, under which payment from a third party is permissible only if it does not compromise the lawyer's loyalty and other obligations to the client-insured.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.4 (Model Rule 1.4) and 1.7 (Model Rule 1.7) as originally adopted. Rule 1.4 requires a lawyer to keep the client reasonably informed and to promptly comply with reasonable requests for information, and to explain matters to permit informed decisions. The Comment to Rule 1.7 permits third-party payment of a lawyer's fee where the client consents and the lawyer's loyalty is not compromised. The panel relied on ABA Formal Opinion 96-403 for the principle that insurance-defense counsel owes undivided loyalty to the insured.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / RI RPC 1.4 (communication; reasonable requests for information)
• Model Rule 1.7 / RI RPC 1.7 (conflict of interest; third-party payment in the Comment)

Other opinions cited:

• ABA Formal Op. 96-403 (1996) (insurance-defense counsel's undivided loyalty to the insured): the panel's controlling authority
• Florida Bar Prof. Ethics Comm. Op. 97-1 (1997): cited on the same point

See also

• RI EAP Op. 99-18: Insurer litigation guidelines and the lawyer's independent judgment
• RI EAP Op. 99-17: Client consent to a third-party bill audit under Rule 1.6

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2098-10.pdf

Original opinion text

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

Final

                                              RHODE ISLAND SUPREME COURT
                                                 ETHICS ADVISORY PANEL
                                               Opinion No. 98-10 Request No. 744
                                                      Issued April 9, 1998

Facts

     The inquiring attorney states that he/she was retained by an insurance company to represent

its insured in a tort action. The insured has retained a second attorney to represent him/her
with respect to liability in excess of the policy limits. The insured has asked the inquiring attorney
for copies of letters that the inquiring attorney wrote to the insurance company's adjuster
which contain the inquiring attorney's mental impressions and legal analysis of liability, damage,
and settlement negotiations in the tort action.

Issue Presented

    The inquiring attorney asks whether he/she has an obligation under the Rules of Professional

Conduct to provide the insured with the documents he/she has requested.

Opinion

    Yes. The insured is the inquiring attorney's client, and as such the inquiring attorney has

obligations under Rule 1.4 to keep him/her reasonably informed and to comply promptly with
reasonable requests for information.

Reasoning

    A lawyer hired by an insurance company to represent its insured must represent the insured

as his/her client with undivided loyalty. See ABA Standing Comm. on Ethics and Prof.
Responsibility, Formal Op. 96-403 (1996); Florida Bar Prof. Ethics Comm. Op. 97-1 (1997).
While the insurance contract sets forth the rights and obligations as between the insured and the
insurer, that contract does not define the ethical responsibilities of a lawyer to his/her client or
clients. ABA Standing Comm. on Ethics and Professional Responsibility, Formal Op. 96-403
(1996). If a lawyer who is hired and paid by an insurer to defend an insured represents the insured,
whether alone or jointly with the insurer, the Rules of Professional Conduct govern the
lawyer's ethical obligations to the client-insured.1
1
In the instant request, the inquiring attorney makes clear that he/she has been retained to
represent the insured. Whether the inquiring attorney also represents the insurer is not fundamental
to this inquiry.
EAP 98-10
Page 2

   The Comment to Rule 1.7 (Conflict of Interest: General Rule) states:

           A lawyer may be paid from a source other than the client, if the
           client is informed of that fact and consents and the arrangement
           does not compromise the lawyer's duty of loyalty to the client.

Therefore, pursuant to Rule 1.7, a contractual relationship, and an attorney-client relationship if
one exists, between an insurer and a lawyer retained to represent its insured must not compromise
the lawyer's loyalty and other obligations to the client-insured.

   Rule 1.4 requires lawyers to keep clients reasonably informed and to comply with reasonable

requests for information. It states:

           (a) A lawyer shall keep a client reasonably informed about the
           status of a matter and promptly comply with reasonable requests
           for information.

           (b) A lawyer shall explain to the extent reasonably necessary to
           permit the client to make informed decisions regarding the representation.

     In the instant inquiry, the client-insured has requested copies of letters written by his/her

attorney and containing information that pertains to his/her defense of the tort action, including
the attorney's legal analysis of liability, damages, and settlement. The Panel believes that the request
is reasonable, notwithstanding the fact that they were directed to the insurer's adjuster and
not to the client-insured. "The guiding principle is that the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in the client's best interests, and the
client's overall requirements as to the character of representation." Comment to Rule 1.4. The
Panel therefore concludes that the inquiring attorney has an ethical obligation to provide the client-insured
with the documents he/she has requested.