Can a plaintiff's lawyer contact the insurance adjuster directly when the defendant is represented by a lawyer the insurer hired?

Plain-English summary

The opinion addresses whether Rule 4.2, the no-contact rule, bars a plaintiff's lawyer from communicating directly with an insurer's adjuster when the defendant/insured is defended by a lawyer the insurer provided and that lawyer has not said whether he represents the insurer or only the insured. The committee frames the question around whether the insurer is a "represented person" in the matter.

The committee explains that the Supreme Court of Virginia has never directly held that the insurer is also a client of the lawyer the insurer provides to the insured. It reads Norman v. Insurance Company, 218 Va. 718 (1978), along with UPL Opinion 60 and LEO 1723, as strongly suggesting that the insured is the only client. While the existence of an attorney-client relationship is a question of law and fact, the committee concludes it is not accurate to presume the defense lawyer represents the insurer as well; a single lawyer may represent both absent a conflict, and if the lawyer jointly represents both, Rule 4.2 would require consent before the plaintiff's lawyer contacts the insurer.

The operative holding turns on the plaintiff's lawyer's actual knowledge. Unless the plaintiff's lawyer is aware that the defense lawyer also represents the insurer, the plaintiff's lawyer may communicate with the adjuster or other insurer employees without the defense lawyer's consent. The committee overrules LEOs 550, 687, 1169, and 1524 to the extent they state or imply that the lawyer for the defendant/insured always represents the insurer as well, which would have required the plaintiff's lawyer to seek consent before contacting the adjuster.

In practice

Under the Virginia rule, a plaintiff's lawyer may communicate directly with an insurer's adjuster or other employees without the defense lawyer's consent, unless the plaintiff's lawyer actually knows that the defense lawyer also represents the insurer. The opinion holds that the insurer is not presumed to be a client of the lawyer it provides to defend the insured, so Rule 4.2 does not bar contact with the insurer absent that knowledge; if the defense lawyer does jointly represent the insurer, Rule 4.2 applies and the plaintiff's lawyer needs consent. The opinion overrules LEOs 550, 687, 1169, and 1524 to the extent they implied the defense lawyer always represents the insurer.

Common questions

Q: Can I contact the adjuster directly when the defendant has insurer-provided counsel?

A: The opinion concludes yes, unless you actually know that the defense lawyer also represents the insurer. Rule 4.2 bars contact only with a represented person, and the insurer is not presumed to be a client of the lawyer it provides to the insured.

Q: What if the defense lawyer does represent both the insured and the insurer?

A: The opinion concludes that if the lawyer jointly represents both, the insurer is a represented person and Rule 4.2 requires the defense lawyer's consent before the plaintiff's lawyer communicates with the insurer.

Q: Do the older Virginia opinions still control this question?

A: No. The opinion overrules LEOs 550, 687, 1169, and 1524 to the extent they stated or implied that the lawyer for the defendant/insured always represents the insurer, which would have required the plaintiff's lawyer to obtain consent before contacting the adjuster.

Background and rules framework

The opinion interprets Rule 4.2 of the Virginia Rules of Professional Conduct (Model Rule 4.2), which prohibits communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in the matter, absent consent or legal authorization. Whether the insurer is a "represented person" depends on whether it is a client of the defense lawyer, a question of law and fact the committee addresses by reference to Norman v. Insurance Company, UPL Opinion 60, and LEO 1723.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Va. Rule 4.2 (communication with represented persons)

Cases:

• Norman v. Insurance Company of North America, 218 Va. 718, 239 S.E.2d 902 (1978), defense lawyer owes the insured the same duty as if privately retained

Other opinions cited:

• Va. UPL Op. 60 (1985); Va. LEO 1723 (1999): the insured is the client of insurer-provided counsel
• Va. LEOs 550, 687, 1169, 1524: overruled to the extent they imply the defense lawyer always represents the insurer

See also

• VSB Ethics Op. 1890: Communications With Represented Persons (Compendium)

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1863.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1863

MAY A LAWYER COMMUNICATE WITH AN
INSURANCE ADJUSTER WHEN THE INSURED IS
REPRESENTED BY A LAWYER PROVIDED BY THE
INSURER?

In this hypothetical, a defendant/insured in a personal injury case is represented by a lawyer provided by his liability insurer. The plaintiff is also represented by a lawyer. The defendant/insured’s lawyer has not indicated to the plaintiff’s lawyer whether he represents the insurer or only the insured. The plaintiff’s lawyer asks whether he may communicate directly with the insurance adjuster, an employee of the insurer, without consent from the defendant/insured’s lawyer. QUESTION PRESENTED In a pending personal injury case where the defendant is represented by counsel provided by his insurance carrier, may the plaintiff’s lawyer contact the insurance carrier without the consent of the defendant/insured’s lawyer? APPLICABLE RULES AND OPINIONS The applicable Rule of Professional Conduct is Rule 4.21, and the applicable legal ethics opinions are 550, 687, 1169, 1524, and 1723. ANALYSIS The Supreme Court of Virginia has never directly answered the question of whether the insurer is also a client of the defendant/insured’s lawyer when that lawyer is provided to the defendant/insured pursuant to his contract of insurance with the insurer. The leading authority on the duties of the lawyer for the insured, Norman v. Insurance Company, 218 Va. 718, 239 S.E.2d 902 (1978), emphasizes that the lawyer for the defendant/insured owes the same duty to his client as if he were privately retained by the insured – thereby strongly suggesting that the defendant/insured is the only client of the lawyer. Unauthorized Practice of Law Opinion 60 (Approved by the Supreme Court of Virginia, March 8, 1985) and Legal Ethics Opinion 1723 (Approved by the Supreme Court of Virginia, September 29, 1999) also suggest the same conclusion. Although the question of whether an attorney-client relationship exists in a specific case is a question of law and fact, the Committee believes that, based on these authorities, it is not accurate to say that the defendant/insured’s lawyer should be presumed to represent the insurer as well. On the other hand, in the absence of a particular conflict, it would be permissible for a single lawyer to represent both the insured and the insurer. If the lawyer is jointly representing both the insured and the insurer, then Rule 4.2 would apply to require the lawyer’s consent to any communications between the plaintiff’s lawyer and the insurer. Conversely, if the lawyer is not representing the insurer, then Rule 4.2 does not apply and the plaintiff’s lawyer is free to communicate with the insurer without the defendant/insured’s lawyer’s consent/involvement.2 Accordingly, unless the plaintiff’s lawyer is aware that the defendant/insured’s lawyer also represents the insurer, the plaintiff’s lawyer may communicate with the insurance adjuster or 1

Rule 4.2 Communication With Persons Represented By Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer 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. 2 The duties that arise out of the contractual relationships that exist between the insurer, the insured, and the defendant/insured’s lawyer are not addressed in this opinion.

LEO 1863
Page 2
other employees of the insurer without consent from the defendant/insured’s lawyer. LEOs 550, 687, 1169, and 1524 are overruled to the extent that they state or imply that the lawyer for the defendant/insured always represents the insurer as well, thereby requiring plaintiff’s lawyer to seek the insured’s lawyer’s consent before communicating with the insurance adjuster. This opinion is advisory only and is not binding on any court or tribunal. Committee Opinion September 26, 2012