Can a plaintiff's lawyer directly notify a defendant's homeowners insurance carrier of the claim against its insured?

Plain-English summary

Attorney A represented a client injured by a dog owned by a Mother, Son, and Daughter. The Mother and Son lived where the attack occurred but had no homeowners insurance; the Daughter, married and living elsewhere, was an insured under a homeowners policy held by her father-in-law that would cover her. Attorney B represented the Mother, Son, and Daughter. Attorney A asked Attorney B to notify the Daughter's homeowners carrier of the claim, and Attorney B refused. The question was whether Attorney A could directly contact the carrier to place it on notice of the client's claim against the Daughter.

The committee concluded Attorney A could. Contact with persons or entities other than the client is governed by Rules 4.2 and 4.3. Rule 4.2 prohibits directly communicating about the subject of the representation with a party represented by counsel, but does not bar communicating with an unrepresented party; because the insurance company is not a party, Rule 4.2 was inapplicable. The communication was instead governed by Rule 4.3, which allows the contact but limits its scope and form: Attorney A must clearly inform the carrier of the nature of his interest, that he represents the client, and that he is not disinterested. Because Attorney A proposed to contact the carrier merely to place it on notice of the client's claim against one of its insureds, the committee concluded that communication is permitted under Rule 4.3.

Currency note

This opinion was issued in 1998, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 a plaintiff's lawyer contact a defendant's insurance carrier directly?

A: The committee concluded yes, to inform the carrier of the nature of the client's claim against its insured, because the carrier is not a represented party.

Q: Does Rule 4.2 (no contact with represented persons) bar the contact?

A: The committee concluded no: the insurance company is not a party, so Rule 4.2 is inapplicable; Rule 4.3 governs instead.

Q: What does Rule 4.3 require in the contact?

A: The committee stated the attorney must clearly inform the carrier of the nature of his interest, that he represents the client, and that he is not disinterested.

Background and rules framework

The opinion interpreted South Carolina RPC 4.2 (communication with a represented party) and RPC 4.3 (dealing with an unrepresented person; disclosing the lawyer's role and that he is not disinterested), corresponding to the like-numbered Model Rules, as applied to contacting a non-party insurance carrier.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: communication with persons represented by counsel.
• South Carolina RPC 4.3 / Model Rule 4.3: dealing with an unrepresented person.

See also

• SC Bar Ethics Op. 98-25: Attending a Meeting With a Party
• SC Bar Ethics Op. 99-14: Prosecutor and Police Contact

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-27/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 98-27

Attorney A represents Client, who was injured when he was attacked by a dog owned by Mother, Son, and Daughter. Mother and Son reside on the premiss where the attack took place. However, Mother and Son do not have homeowners insurance. Daughter is married and resides elsewhere. Daughter is an insured under a homeowners policy held by Daughter's father-in-law. The policy would provide coverage for Daughter in this situation. Attorney B represents Mother, Son, and Daughter in the action brought by Attorney A's Client. Attorney A has requested attorney B to notify the homeowner's insurance carrier insuring Daughter about the claim. Attorney B has refused to comply with Attorney A's request. The Defendants should have sufficient assets to satisfy any judgment.

QUESTION:
May Attorney A directly communicate with the homeowner's insurance carrier insuring Daughter in order to place it on notice of Client's claim against Daughter?

SUMMARY:
Attorney A may communicate with the insurance carrier for purposes of informing it of the nature of Client's claim against its insured. The scope and form of the communication is subject to the limitations set forth in Rule of Professional Conduct 4.3.

OPINION:
Questions surrounding an attorney's contact with persons or entities other than client during the course of a representation are governed by RPC 4.2 and 4.3. Rule 4.2 prohibits an attorney from directly communicating about the subject matter of the representation with a party represented by counsel, unless the party's counsel consents or the contact is authorized by law. Rule 4.2 does not prohibit a lawyer from directly communicating with an unrepresented party. The insurance company is not a party, thus Rule 4.2 is inapplicable.

The issue of communications with the insurance carrier is governed by Rule 4.3. This rule allows the communication contemplated by Attorney A but imposes limitations on its scope and form. Under Rule 4.3, Attorney A is required to clearly inform the insurance company regarding the nature of his interest in the matter, i.e. that he represents Client, and that he is not disinterested in the matter. Attorney A proposes to communicate with the insurance carrier for the mere purpose of placing it on notice of Client's claim against one of its insureds. This communication is permitted under Rule 4.3.