If an insurer asks a lawyer to defend an employee who never contacted the lawyer, can the lawyer act for that employee?

Plain-English summary

A lawyer was retained by an insurance company to represent an employee of the insured company. The employee was covered under the terms of the insurance policy but was no longer employed by the insured.

The committee understood the facts to be that the employee the lawyer had been requested to represent had had no contact with the lawyer, and that no attorney-client relationship had ever been formed. On that understanding, the committee concluded that the lawyer had no authority to act as lawyer for the employee, and therefore should not enter a general denial on his behalf.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 an insurer-assigned lawyer act for an employee who never contacted the lawyer?

A: On these facts, no. The committee concluded that with no contact and no attorney-client relationship formed, the lawyer had no authority to act as the employee's lawyer.

Q: Could the lawyer file a general denial to protect the employee?

A: The committee said the lawyer should not enter a general denial on the employee's behalf, because the lawyer had no authority to act for him.

Q: What made the difference in the committee's view?

A: That the employee had had no contact with the lawyer, so no attorney-client relationship had ever formed, regardless of the insurer's request.

Background and rules framework

The committee did not cite a rule by number. It rested on the threshold question of whether an attorney-client relationship had formed. Because the employee never contacted the lawyer, the committee treated him as a non-client to whom the lawyer owed no authority to act, and so the lawyer could not file pleadings on his behalf.

Citations and references

Rules of Professional Conduct:

• The opinion cites no rule by number. It turns on whether an attorney-client relationship had formed, a threshold that determines a lawyer's authority to act.

See also

• WSBA Ethics Op. 836: a lawyer advising the customers of a client
• WSBA Ethics Op. 1014: a parent paying for a child's lawyer (third-party payment)

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=39

Original opinion text

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

Advisory Opinion: 928
Year Issued: 1985
RPC(s):
Subject: Formation of attorney-client relationship

[The lawyer was retained by an insurance company to represent an employee of the insured company. The employee was covered under the terms of the insurance policy but was no longer employed by the insured.] In reviewing your inquiry, the Committee understood the facts to be that the employee you had been requested to represent had had no contact with you, and that in fact no attorney-client relationship had ever been formed. Based upon that understanding of the facts, the Committee was of the opinion that you had no authority to act as lawyer for the employee, and therefore should not enter a general denial on his behalf.