Opinion #125. Communication with Insurance Carrier's Adjuster

Issued by the Professional Ethics Commission

Date Issued: June 9, 1992

Question

The Commission has been asked for its guidance concerning the extent to which a lawyer for an employee in a workers’ compensation proceeding may communicate directly with an adjuster who is employed by an insurance carrier. The carrier is named as a party in the proceeding and is represented by counsel.

Opinion

The Commission concludes that a lawyer for an employee in a workers’ compensation proceeding is prohibited by Bar Rule 3.6(j) from communicating with an adjuster employed by a party’s insurance carrier, when the carrier is named as a party to the litigation,[1] is represented by counsel, and counsel has not consented. The purposes of the Rule, as it applies to communications with corporate employees, were extensively discussed in Opinion No. 94, both in a litigation and a pre‑litigation context. Generally, the Commission concluded that the anticontact rule prohibited communications during litigation by opposing counsel with employees of a corporation who either have the power to bind the corporation legally or have responsibility for making decisions on the litigation or assisting the corporation’s lawyers in making those decisions. The Commission indicated that whether a particular employee falls within one of these two categories must be determined on a case‑by‑case basis. The question presented by this particular case, therefore, is whether an insurance adjuster falls within one of the two categories of employees to whom the anticontact rule applies.

With regard to whether an insurance adjuster is a member of a so‑called “control group” of a corporation, the Commission is of the view that, while it is possible for a particular adjuster to be so considered, it is difficult to resolve the issue in this case in the absence of additional facts. The Commission believes, however, that the Rule nevertheless applies, because an insurance adjuster clearly fits within the second category, since he or she is a person responsible for making decisions on litigation, or assisting the corporation’s lawyers in making such decisions. The very purpose of such an employee is to attempt to resolve disputes involving the insurance company. Inevitably, such employees work closely with lawyers employed by the company, and therefore may be in the possession of factual or tactical information about the dispute, not because they have actually witnessed the events which gave rise to the litigation, but because of their close association with the insurance company’s lawyers.[2] Consequently, unrestricted contact with them on the part of a lawyer representing an opposing party could lead to the kind of unfair advantage in the litigation which Rule 3.6(j) is designed to avoid.[3] Accordingly, the Commission interprets such employees to be within the meaning of the term “adverse party” contained in the Rule, and concludes that opposing counsel may not contact them, or cause them to be contacted, without the prior consent of the lawyer representing their employer.


Footnotes

[1] The logic by which the Commission reaches this conclusion suggests, but the Commission need not decide, that the same result would obtain even if the carrier were not a party.

[2] The Commission notes that, under this analysis, it makes no difference whether the adjuster is a full‑time employee of the insurance carrier, or is retained by it on some other basis. Either way, the key fact is his or her close association with the corporation’s lawyers, who themselves may be either full‑time employees or separately retained counsel.

[3] In view of this purpose, the application of the Rule is much weaker in a pre‑litigation context. See generally the discussion contained in the answer to Question No. 2 of Opinion No. 94.


Enduring Ethics Opinion