Can plaintiff's counsel communicate directly with an insurance adjuster after a lawyer has appeared for the insured?

Plain-English summary

A lawyer asked about plaintiff's counsel having direct communication with an insurance adjuster after counsel had appeared in an action on behalf of an insured. The inquiry pointed out an apparent conflict between WSBA Formal Opinion 137 and Tank v. State Farm Insurance. On review, the committee agreed there was a conflict between the 1968 formal opinion and the 1986 Supreme Court opinion, and it recommended that the Board of Governors withdraw Formal Opinion 137. An editor's note records that the Board of Governors has withdrawn Formal Opinion 137.

The committee was of the opinion that RPC 4.2 would not prohibit plaintiff's counsel from communicating directly with an insurance adjuster unless that adjuster were independently represented by counsel.

Currency note

This opinion was issued in 1995, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's RPC 4.2 corresponds to ABA Model Rule 4.2 (communication with a person represented by counsel).

Common questions

Q: Does RPC 4.2 bar contacting an insurance adjuster after the insured has a lawyer?

A: The committee was of the opinion that RPC 4.2 would not prohibit plaintiff's counsel from communicating directly with the adjuster unless the adjuster were independently represented by counsel.

Q: What happened to the older opinion on this question?

A: The committee found that Formal Opinion 137 (1968) conflicted with Tank v. State Farm Insurance (1986) and recommended that the Board of Governors withdraw it; an editor's note records that the Board has done so.

Background and rules framework

The opinion applied RPC 4.2 (communication with represented persons, corresponding to ABA Model Rule 4.2). The committee resolved the conflict between the earlier formal opinion and the Washington Supreme Court's decision in Tank v. State Farm by reading RPC 4.2 to turn on whether the adjuster was independently represented by counsel.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 4.2 (communication with person represented by counsel); Washington RPC 4.2

Cases:

• Tank v. State Farm Fire & Casualty Co., 105 Wn.2d 381 (1986), referenced for the conflict with the earlier formal opinion

Other opinions cited:

• WSBA Formal Opinion 137 (1968): recommended for withdrawal and, per an editor's note, withdrawn by the Board of Governors

See also

• WA Ethics Op. 1647: Public Defender Agency Paying Conflict Counsel
• WA Ethics Op. 1641: Adverse to an Insurer That Insured a Prior Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=726

Original opinion text

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

Advisory Opinion: 1643
Year Issued: 1995
RPC(s): RPC 4.2
Subject: Direct communication with an insurance adjuster after counsel appears on insured

The Committee reviewed your inquiry concerning conduct of a plaintiffs counsel having direct communication with an insurance adjuster after counsel had appeared in an action on behalf of an insured. You pointed out an apparent conflict between Formal Opinion 137 and Tank v. State Farm Insurance. Upon review, the Committee agreed there was a conflict between the 1968 Formal Opinion and the 1986 Supreme Court Opinion. The Committee is recommending that the Board of Governors withdraw Formal Opinion 137. [Editors Note: Fornmal Opinion 137 has been withdrawn by the BOG].

Further, the Committee was of the opinion that RPC 4.2 would not prohibit plaintiff`s counsel from communicating directly with an insurance adjuster unless that adjuster were independently represented by counsel.