UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 98-27
Attorney A represents Client, who was injured when he was attacked by a dog owned by Mother, Son, and Daughter. Mother and Son reside on the premiss where the attack took place. However, Mother and Son do not have homeowners insurance. Daughter is married and resides elsewhere. Daughter is an insured under a homeowners policy held by Daughter's father-in-law. The policy would provide coverage for Daughter in this situation. Attorney B represents Mother, Son, and Daughter in the action brought by Attorney A's Client. Attorney A has requested attorney B to notify the homeowner's insurance carrier insuring Daughter about the claim. Attorney B has refused to comply with Attorney A's request. The Defendants should have sufficient assets to satisfy any judgment.
QUESTION:
May Attorney A directly communicate with the homeowner's insurance carrier insuring Daughter in order to place it on notice of Client's claim against Daughter?
SUMMARY:
Attorney A may communicate with the insurance carrier for purposes of informing it of the nature of Client's claim against its insured. The scope and form of the communication is subject to the limitations set forth in Rule of Professional Conduct 4.3.
OPINION:
Questions surrounding an attorney's contact with persons or entities other than client during the course of a representation are governed by RPC 4.2 and 4.3. Rule 4.2 prohibits an attorney from directly communicating about the subject matter of the representation with a party represented by counsel, unless the party's counsel consents or the contact is authorized by law. Rule 4.2 does not prohibit a lawyer from directly communicating with an unrepresented party. The insurance company is not a party, thus Rule 4.2 is inapplicable.
The issue of communications with the insurance carrier is governed by Rule 4.3. This rule allows the communication contemplated by Attorney A but imposes limitations on its scope and form. Under Rule 4.3, Attorney A is required to clearly inform the insurance company regarding the nature of his interest in the matter, i.e. that he represents Client, and that he is not disinterested in the matter. Attorney A proposes to communicate with the insurance carrier for the mere purpose of placing it on notice of Client's claim against one of its insureds. This communication is permitted under Rule 4.3.