When part of a workers' comp (L&I) claim is in litigation, can the injured worker's lawyer contact the third-party administrator handling the claim for a self-insured employer?

Plain-English summary

The inquiry concerned a workers' compensation (L&I) matter in which part of a claim is in litigation, and focused on whether a "third-party administrator" (TPA) that handles workers' compensation claims for self-insured employers is a represented party for purposes of RPC 4.2's no-contact rule.

The committee answered that question affirmatively, quoting its earlier Informal Ethics Opinion 2112. In that opinion, a self-insured employer either has an employee/adjuster administer the claim or hires an independent firm (a TPA), and the adjuster or TPA has discretion and authority to bind the employer in claims-management decisions. Applying RPC 4.2, the committee said a lawyer representing an injured worker may not contact current employees of a represented entity who have legal authority to bind the entity in an evidentiary sense, that is, those with "speaking authority" for the entity (citing the Washington Ethics Deskbook, section 10.4).

The committee added that RPC 4.2 permits counsel to communicate directly with the employee/adjuster administrator or TPA if counsel first seeks and obtains consent from opposing counsel. The committee described seeking consent as always an appropriate practice, even when there is a good argument that the subject of the desired communication lies outside the scope of the representation between the administrator and opposing counsel.

In practice

Under this opinion, and under RPC 4.2 as it stood at the time, an adjuster or third-party administrator who can bind a self-insured employer in claims-management decisions is treated as within the represented entity, so the injured worker's lawyer may not contact current employees who have authority to bind the entity ("speaking authority") about the matter without authorization. The committee identified a clear path for direct contact: first seek and obtain the opposing lawyer's consent, which it described as always appropriate even when the desired communication arguably falls outside the scope of the administrator's representation.

Common questions

Q: Is a third-party administrator handling a workers' comp claim a represented party under RPC 4.2?

A: The committee answered yes. Quoting Informal Ethics Opinion 2112, it treated a TPA or employee/adjuster with discretion and authority to bind a self-insured employer in claims-management decisions as within RPC 4.2's no-contact rule.

Q: Which employees of a represented entity can't be contacted?

A: The committee said a lawyer may not contact current employees of a represented entity who have legal authority to bind the entity in an evidentiary sense, those with "speaking authority" for the entity.

Q: Can the worker's lawyer ever communicate directly with the adjuster or TPA?

A: Yes, if the lawyer first seeks and obtains consent from opposing counsel. The committee said this is always an appropriate practice, even when there is a good argument the communication lies outside the scope of the representation.

Background and rules framework

The opinion applies Washington RPC 4.2 (the no-contact rule; the counterpart to Model Rule 4.2), which bars a lawyer from communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent or legal authorization. It applies the rule to workers' compensation (L&I) claims administered for a self-insured employer by an in-house adjuster or a third-party administrator, relying on Informal Ethics Opinion 2112 and the Washington Ethics Deskbook's treatment of which employees have "speaking authority" for a represented entity.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a represented person; application to a represented entity's employees with authority to bind it)

Other opinions cited:

• WSBA Informal Ethics Opinion 2112: a TPA or adjuster with discretion and authority to bind a self-insured employer is treated as within RPC 4.2's no-contact rule

Other references:

• Washington Ethics Deskbook, section 10.4 (employees with "speaking authority" for a represented entity)

See also

• WA Ethics Op. 2112: Contacting a Claims-Management Agent
• WA Ethics Op. 2132: Shareholder-Lawyer Addressing a Represented Board
• WA Ethics Op. 1000: Contact With a Party Represented by Counsel

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1588

Original opinion text

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

Advisory Opinion: 2150
Year Issued: 2007
RPC(s): RPC 4.2
Subject: With whom a lawyer may communicate regarding ongoing L&I claims administration when a distinct part of an L&I claim is in litigation

The inquiring lawyer’s letter to the Committee seems to focus primarily on the question of whether a “third party administrator,” which handles workers compensation claims for self-insured employers, is a represented party for purposes of RPC 4.2’s “no contact” rule.

ANALYSIS

The Committee answered this question affirmatively earlier this year in Informal Ethics Opinion 2112:

“FACTS:

“Defense counsel represents self-insured employers in worker’s compensation cases. The employer either has its employee/adjuster administer the claim or hires an independent firm to do so, which is known as a third party administrator (TPA). The adjuster/employee and the TPA have the discretion and authority to bind the employer in making claims management decisions. The firm gives written notice in pleadings or by letter of the following:

“‘This firm represents the interests of and ______.’”

“QUESTIONS PRESENTED:

“Whether an attorney representing an injured worker in a worker’s compensation claim against a self-insured employer may ethically contact entities about the matter who are known to be represented by counsel or who have discretion and authority to bind the employer in making claims management decisions.

“RESPONSE:

“In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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. RPC 4.2. The prohibition is mandatory and forbids contact absent permission or legal authority, neither of which apply to this inquiry.

“A lawyer may not ethically contact current employees of a represented entity who have the legal authority to “bind” the entity in a legal evidentiary sense, i.e., those employees who have “speaking authority” for the entity. See also, Washington Ethics Deskbook, section 10.4.”

In addition, RPC 4.2 permits counsel to communicate directly with the employee/adjuster administrator or third-party administrator if she/he first seeks and obtains consent for such from opposing counsel. This is always an appropriate practice, even when there is a good argument that the subject of the desired communication lies outside the scope of the representation between the “administrator” and opposing counsel.