Can lawyers working in a railroad's claims department contact injured workers who are already represented by counsel, to verify representation, ask why they hired a lawyer, or request medical records?

Plain-English summary

A railroad's claims department, supervised by a Virginia lawyer and staffed partly by other lawyers, contacted injured workers after their attorneys gave notice of representation. In one scenario a nonlawyer claims agent confirmed representation, asked why the worker hired a lawyer, and recommended against using one. In another, a Bar-member "Disability Support Services" employee sought medical records and offered rehabilitation, with the resulting statements usable against the worker. The committee was asked whether these contacts are permissible.

The opinion frames everything through Rule 4.2, which bars a lawyer "in representing a client" from communicating about the matter with a represented person without that person's counsel's consent. The Rules govern only lawyers, not the corporation, its departments, or nonlawyer employees (whose conduct is a UPL question outside the committee's purview). Using the Unauthorized Practice Rules' definition of the attorney-client relationship (furnishing advice or service implying use of legal knowledge), and consistent with LEOs 1819, 1803, 1592, and 1127, the committee concludes that the claims-department head and the attorney/claims agents represent the railroad: they gather information for the railroad and its litigation counsel and try to persuade workers to drop their lawyers, which is legal work regardless of the "claims agent" label. Their communications with represented workers are therefore limited by Rule 4.2, and the attorney/agents improperly failed to get opposing counsel's consent.

The opinion adds supervisory duties: under Rule 8.4(a) the department head cannot direct staff to do what Rule 4.2 forbids him to do, and Rules 5.1 and 5.3 require him to supervise lawyer and nonlawyer staff consistent with his own obligations. The in-house counsel, whose legal department houses the claims department, has the same supervisory responsibilities. The "verifying representation" rationale does not justify the contacts: written notice from counsel suffices, and if a worker confirms representation, the communication must stop and be redirected to counsel. The opinion notes that parties may still communicate directly under Comment 1, but a lawyer communicating for an employer-client is counsel, not a party.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a lawyer doing claims-management work for an employer is representing that employer, so Rule 4.2 governs the lawyer's contacts with represented claimants and forbids them absent the claimant's counsel's consent. Per the opinion, nonlawyer claims agents are not directly governed by the Rules, but a supervising lawyer cannot use them under Rules 8.4(a), 5.1, and 5.3 to make contacts the lawyer could not make, and "verifying representation" is not a basis to contact a worker who is already known to be represented.

Common questions

Q: Does Rule 4.2 apply to in-house lawyers working as claims agents?

A: Yes. The opinion concludes that lawyers doing claims work for the railroad are representing the railroad, so Rule 4.2 limits their communications with represented workers regardless of their "claims agent" title.

Q: Can a claims agent contact a represented worker just to "verify" representation?

A: Per the opinion, written notice from counsel is sufficient, so a lawyer should begin with counsel; if any contact occurs and the worker confirms representation, the communication must stop and be redirected to counsel.

Q: Can the department head have nonlawyer staff make the contacts instead?

A: No. The opinion states Rule 8.4(a) bars a lawyer from doing through staff what Rule 4.2 forbids, and Rules 5.1 and 5.3 require supervision consistent with the lawyer's own obligations.

Q: Does this stop the railroad and worker from talking directly?

A: No. The opinion notes Comment 1 to Rule 4.2 allows parties to communicate directly, but a lawyer communicating for an employer-client is acting as counsel, not as a party.

Background and rules framework

The opinion interprets Rule 4.2 (Model Rule 4.2), which restricts a lawyer representing a client from contacting represented persons about the matter. It uses the Unauthorized Practice Rules' definition of the attorney-client relationship to decide which in-house lawyers are "representing a client." It applies Rule 8.4(a) (acting through another), and Rules 5.1 and 5.3 (supervision of lawyer and nonlawyer staff), to the department head's and in-house counsel's supervisory duties.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Virginia Rule 4.2 (communication with represented persons)
• Model Rule 8.4(a) / Virginia Rule 8.4(a) (violating the rules through the acts of another)
• Model Rule 5.1 / Virginia Rule 5.1 (responsibilities of supervisory lawyers)
• Model Rule 5.3 / Virginia Rule 5.3 (responsibilities regarding nonlawyer assistants)

Other opinions cited:

• Virginia LEOs 1819, 1803, 1592, 1127 (when work creates an attorney-client relationship)
• Virginia LEOs 233, 1375 (a lawyer cannot direct staff to contact a represented person)

See also

• VA LEO 1890: Communications With Represented Persons
• VA LEO 1821: Suing a Corporate Board a Partner Sits On
• VA LEO 1838: In-House Counsel Serving a Sister Corporation

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1820.pdf

Original opinion text

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

Committee Opinion
January 27, 2006

LEGAL ETHICS OPINION 1820

CAN AN ATTORNEY EMPLOYEE OF A
RAILROAD COMMUNICATE WITH
INJURED RAILROAD WORKERS WHO
ARE REPRESENTED BY COUNSEL?

You have presented two hypotheticals involving the employees of a railroad. The
underlying situation in each is that an employee was injured on the job. That employee
hires an attorney, who notifies the railroad claims department of his representation. The
claims department has employees who investigate the claims made by injured employees.
That department is supervised by a member of the Virginia State Bar. Some, but not all,
of the employees in the claims department are also members of the Bar.
In the first scenario, a nonlawyer claims agent contacts the injured employee to confirm
that the lawyer does represent him. That claims agent asks why the injured employee
wants a lawyer and recommends that he not use one. At no time has the department
supervisor instructed the claims agent not to communicate with represented claimants.
In the second scenario, the claims department has an office entitled, “Disability Support
Services.” An employee of that services department, who is a Bar member, contacts the
injured employee after receipt of the notice of representation, seeking medical records
from the injured employee and offering rehabilitation services. If the injured employee
does not respond to that offer, the department employee will testify that rehabilitation
was offered and declined. If the injured employee does respond, the claims agent asks
for a direct interview and broad access to medical records. The claims agent may then
testify against the injured employee regarding statements made during the interview.
The claims agents may also consult with the in-house counsel and the railroad’s
retained counsel who serve as defense counsel in the matter. The railroad claims those
conversations are within the protection of the attorney/client privilege.
With regard to these scenarios, your request poses the following questions:
1) Is the claims department prohibited from contacting the employee after receiving
notice of representation, as the supervisor of the department is a Bar member?
2) Is the claims department permitted to contact an employee for purposes of
“verifying” legal representation after receiving notice from counsel?
3) If that contact is permitted, may a representative of the claims department question
the represented employee regarding why he hired counsel and advise the employee that
he would be better served by dealing directly with the claims department without the
assistance of an attorney?
4) May the claims department contact a represented employee directly in order to
request medical records, offer job retraining, or offer vocational services?

Committee Opinion
January 27, 2006

5) May the Bar member/claims agent contact a represented employee for purposes of
requesting medical records, offering job retraining, or vocational services?
6) While working for an attorney-supervised claims department, is a Virginia attorney
bound by the Rules of Professional Conduct, even though maintaining that he is merely
offering disability support services?
Before addressing your specific questions, it would be helpful to clarify the ethical
responsibilities of the individuals in the differing roles outlined in your scenario. In all
instances, the Virginia Rules of Professional Conduct govern conduct only of licensed
attorneys. The rules do not govern the conduct of nonlawyers. Regulation of nonlawyers
is governed by the Virginia State Bar and the Unauthorized Practice Rules. Interpretation
of the Unauthorized Practice Rules is not within the purview of this Committee. 1 Thus,
in the discussion of this opinion request, this Committee can apply pertinent provisions of
the Rules of Professional Conduct to the lawyers in the scenario, not to the nonlawyer
employees, or to corporate departments. In answering the questions, this Committee will
not be determining whether the conduct of the lawyers, if performed by nonlawyers,
would constitute the unauthorized practice of law. Such an issue is outside the purview
of this Committee. The remarks in this opinion will focus specifically on whether the
outlined conduct of the attorneys employed by this railroad is permissible under the Rules
of Professional Conduct.
The crux of the presented scenario and questions is whether these contacts by railroad
claims agents with the injured workers are permissible. The pertinent provision in the
ethics rules is Rule 4.2, which states as follows:
In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyers knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.
The portion of the rule especially at issue here in resolving the questions presented is
the phrase, “in representing a client.” The plain language of this rule suggests that the
prohibition is only triggered when the lawyer actually represents a client in the matter to
be discussed. Reviewing the various attorneys in the scenario, which come within that
language? Of the in-house counsel, the claims department head, and the attorney/claims
agents, which actually represent the railroad such that Rule 4.2 governs their
communications with the injured workers?
Whether an attorney/client relationship has been formed in any particular situation is a
fact-specific determination. The Rules of Professional Conduct do not specifically

1

Issuing opinions interpreting the Unauthorized Practice Rules is the task of the Virginia State Bar’s
Standing Committee on the Unauthorized Practice of Law.

Committee Opinion
January 27, 2006
contain a definition of “attorney/client relationship”. This Committee has consistently
relied upon the definition found in the Unauthorized Practice Rules:
Generally, the relation of attorney and client exits, and one is deemed
to be practicing law whenever he furnishes to another advice or service
under circumstances which imply his possession and use of legal
knowledge.
That definition looks to the nature of the work performed more than to some formalistic
requirement of an express agreement by the client to retain the lawyer as his attorney.
Consistent with that approach, this Committee found in LEO 1819 that a lawyer who
works as a lobbyist may have created an attorney/client relationship with his lobbying
customers if he provided them with legal advice as part of the lobbying services.
Similarly, in LEO 1803, this Committee opined that an institutional attorney assisting
prison inmates created attorney/client relationships with those inmates for whom he
provides legal advice regarding the inmates’ legal documents as well as those for whom
he actually drafted their documents. In LEO 1592, this Committee concluded that an
attorney/client relationship was established where the attorney hired to represent an
uninsured motorist carrier had also provided legal advice and assistance to the pro se
driver. Similarly, in LEO 1127, this Committee found an attorney/client relationship
where the attorney provided legal assistance on items such as discovery requests for pro
se litigants. In each of these opinions, the Committee focused on the nature of the
services provided.
Applying this concept to the present scenario, the Committee notes that the in-house
counsel represents the railroad. Regarding the head of the claims department, the
Committee opines that he also represents the railroad with regard to these injured
workers’ claims. That attorney operates his claims department to, among other things,
assist the railroad in gathering information from the claimants for the use of the railroad
and its litigation attorney, the in-house counsel, and in persuading the claimants to fire
their retained counsel. Such work is squarely within the concept of furnishing “to
another advice or service under circumstances which imply his possession and use of
legal knowledge;” the standard from the above-quoted definition. For the same reason,
the work of the attorney/claims agents also constitutes representing the railroad in these
matters. Those attorney/agents gather information potentially useful in any litigation that
develops out of these claims and try to dissuade the claimants from legal representation.
If the railroad hired a lawyer specifically for those tasks, there would be no question that
the law firm was providing legal representation to the railroad. That instead the railroad
places these lawyers in-house and labels them claims agents does not change the
underlying character of their work. The claims management work performed by the
attorneys employed by the railroad involves legal representation of the railroad. As these
claims lawyers, both the department head and the claims agents, are providing legal
services to the railroad, their communications with represented persons is limited by Rule
4.2.

Committee Opinion
January 27, 2006
The attorney serving as department head in this scenario has additional responsibilities
in this context. The Rules of Professional Conduct establish obligations regarding how
he supervises his staff. First, in considering communications with the represented
workers, he must consider the interplay of Rule 8.4(a) with Rule 4.2. Rule 8.4(a)
declares it impermissible for an attorney to:
Violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so or do so through the acts of
another.
Thus, the attorney/department head, where precluded from communicating with a
represented claimant by Rule 4.2, could not permissibly direct his staff to do so. See
LEOs ##233, 1375.
Also establishing ethical obligations regarding this department head’s staff supervision
are Rules 5.1 and 5.3, which govern the supervision of attorney staff and nonattorney
staff respectively2. While the precise details of each rule differ, both rules direct the

2

Those rules state as follows:
RULE 5.1 Responsibilities of Partners and Supervisory Lawyers
(a) A partner in a law firm, or a lawyer who individually or together with other
lawyers possesses managerial authority, shall make reasonable efforts to ensure that
the firm has in effect measures giving reasonable assurance that all lawyers in the
firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of
Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of
Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has managerial authority in the law firm in which the
other lawyer practices, or has direct supervisory authority over the other lawyer, and
knows of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action.
RULE 5.3. Responsibilities Regarding Nonlawyer Assistants. — With respect to a
nonlawyer employed or retained by or associated with a lawyer:
(a) a partner or a lawyer who individually or together with other lawyers possesses
managerial authority in a law firm shall make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that the person's conduct is
compatible with the professional obligations of the lawyer;

Committee Opinion
January 27, 2006
supervising attorney to supervise his staff in a manner consistent with his own ethical
obligations. This attorney cannot establish and implement a procedure for his staff to
routinely contact represented workers when the initiation of that contact as well as the
content of the communications are incompatible with the attorney’s responsibilities under
Rule 4.2.
While the in-house counsel was not the focus of your inquiry, the Committee notes that
this same point applies equally to the in-house counsel. Because the claims department is
housed within her legal department, she also has ethical obligations stemming from her
supervisory responsibilities regarding the activities of the claims department.
Based on the general principles established above, the Committee answers your
particular question as follows:
1) Is the claims department prohibited from contacting the employee after receiving
notice of representation, as the supervisor of the department is a Bar member?
The Virginia Rules of Professional Conduct govern members of the Virginia State Bar.
The rules do not apply to corporations, or departments of corporations, such as the claims
department of this railroad. Accordingly, the provision in the rules, Rule 4.2, regarding
contact with a represented party does not apply to the claims department. However, see
the response to Question 3, below, for discussion of application of the rule to the
individual lawyers in the claims department, including the department head.
2) Is the claims department permitted to contact an employee for purposes of
“verifying” legal representation after receiving notice from counsel?
The answer to Question 1 also addresses this second question.
3) If that contact is permitted, may a representative of the claims department question
the represented employee regarding why he hired counsel and advise the employee that
he would be better served by dealing directly with the claims department without the
assistance of an attorney?
(b) a lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person's conduct is compatible with the
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has managerial authority in the law firm in which the
person is employed, or has direct supervisory authority over the person, and knows or
should have known of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.

Committee Opinion
January 27, 2006

For this third question, the identity of the particular “representative of the claims
department” is important. If the representative is a nonlawyer, the rules do not directly
apply to that employee’s conduct. However, if the representative is a member of the
Virginia State Bar, the rules do apply to his activities. The Committee has consistently
opined that lawyers working in other fields nevertheless may be subject to the authority
of applicable Rules of Professional Conduct. 3 This is no less true for these lawyers
working in the railroad’s claims department.
As discussed earlier, the particular rule at issue is Rule 4.2, governing contact with
represented persons. The Committee reiterates that the lawyer/claims agents are
providing legal services to their employer, the railroad. The conversations between
claims agents and the injured workers include the lawyer/agent’s analysis of the legal
needs of the worker and advice regarding each worker’s case. When a lawyer/claims
agent tries to persuade a worker that he does not need a lawyer and that his claim will be
better resolved without one, that agent is providing legal analysis and advice. The
Committee opines that such a service comes within the reach of Rule 4.2. Accordingly,
the lawyers operating as railroad claims agents should only be communicating with
workers known to have counsel if that counsel has already provided consent to that
communication. The attorney/agents in the present scenario have improperly failed to
obtain that consent.
A final note regarding the issues raised in these first three questions. The counsel in
each instance has already written the railroad to provide notice of the representation.
There is suggestion that the purpose of the claims department’s contact with the injured
workers is to confirm that they are represented. That stated reason for these contacts
cannot justify the communications. First, written notice from counsel is sufficient; the
attorneys should rely upon that and begin any contact in these matters with counsel, and
not the represented workers. Second, even if written notice was less than clear for some
reason, these contacts should begin with an inquiry as to whether each worker is
represented. When the workers answer that they do have counsel, the communication
should stop at that point. Any further communication regarding the matter would need to
be redirected to counsel. Requests for information and advice regarding the worth of
legal representation would be improper.
For this third question, the role of the “representative of the claims department” is
determinative. If the representative is a nonlawyer, the rules do not directly govern that
individual. If the representative is a member of the Virginia State Bar, the rules do apply
to his activities; the lawyer/claims agents must work within the communication
3

See 1819 (lobbying firm);1764 (attorney fee sharing with finance company); 1754 (attorney selling life
insurance products); 1658 (employment law firm/human resources consulting firm); 1647 (employeeowned title agency); 1634 (accounting firm); 1579 (serving as fiduciary such as guardian or
executor);1584 (partnership with non-lawyer); 1368 (mediation/arbitration services); 1442 (lender’s agent);
1345 (court reporting); 1318 (consulting firm); 1311 (insurance products); 1254 (bail bonds); 1198 (court
reporting); 1163 (accountant; tax preparation); 1131 (realty corporation); l083 (non-legal services
subsidiary); 1016 (billing services firm); 187 (title insurance).

Committee Opinion
January 27, 2006
restriction established by Rule 4.2. Furthermore, the department head attorney’s
supervision of and/or interaction with his staff must not contradict his Rule 4.2 ethical
obligation.
4) May the claims department contact a represented employee directly in order to
request medical records, offer job retraining, or offer vocational services?
As with Questions 1 and 2, above, this question is outside the purview of this
Committee as the Rules of Professional Conduct do not apply to the railroad’s claims
department. However, the analysis in Question 3 regarding the individual members of
the claims department is equally applicable here. If the member of the department is a
nonlawyer, the Rules do not regulate his or her conduct. If the member of the department
is a lawyer, any contact with the represented worker is impermissible if in violation of
Rule 4.2. That would include communications requesting medical records as well as
offering job training and/or vocational services as such requests and offers are part of the
negotiation of the particular claim for which the worker has legal counsel.
5) May the Bar member/claims agent contact a represented employee for purposes of
requesting medical records, offering job retraining, or vocational services?
The discussion in answer to Question 4 responds to this fifth question.
6) While working for an attorney-supervised claims department, is a Virginia attorney
bound by the Rules of Professional Conduct, even though maintaining that he is merely
offering disability support services?
The Committee fully discussed this question in the introduction to this opinion as well
as in the response to Question 3. The attorney/claims agents are bound by the Rules of
Professional Conduct while providing these claims management services. The
Committee notes that offering disability support services is within the subject matter of
the representation for purposes of Rule 4.2 as those services are in response to the claims
of the injured workers.
Finally, the Committee would like to comment on two issues not asked expressly in one
of the questions but nonetheless suggested by the facts presented. First, the facts note
that the railroad does have a legal department, with an in-house counsel who represents
the railroad generally and therefore, presumably, in these claims cases. That attorney
would, in line with the discussion presented in response to Questions 3, 5, and 6, above,
need to limit all communications with the represented workers in the claims cases to
conform to Rule 4.2. Also, that attorney should be mindful of Rule 8.4(a), which
precludes an attorney from violating the Rules through the acts of another. Thus, the
Committee cautions that the attorney in the legal department cannot circumvent the
requirements of Rule 4.2 by directing members of the claims department to initiate
communications the attorney himself is precluded from conducting. Any factual
determination as to whether, in a particular instance, the communication by a claims
agent occurred with sufficient involvement of the in-house counsel as to trigger Rules 4.2

Committee Opinion
January 27, 2006
and 8.4(a) would depend on facts far more detailed than those provided in the present
hypothetical.
Finally, the Committee clarifies that in no way do the conclusions of this opinion
prohibit parties from direct communication. As pointed out in Comment 1 to Rule 4.2,
“parties to a matter may communicate directly with each other.” In many instances such
communication can be effective in speedy resolution of the dispute. However, a lawyer
communicating on behalf of a client, even where that client is his employer, is not a party
to the dispute but instead is counsel for a party. In the context of attorneys employed in
various capacities by party employers, there may be circumstances where it is unclear
whether particular communication derives from the lawyer as counsel or from the party
itself. As discussed throughout this opinion, the Committee opines that the present
context of the railroad employees is not one of those cases that are hard to determine.
The Committee reiterates that both the attorney department head and the attorney
claims/agents represent the railroad in negotiating these claims. Accordingly, their
communications with the represented, injured workers come within the prohibition of
Rule 4.2 rather than the allowance in Comment One for parties to communicate directly
with each other.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.