Opinion 2044

The inquirer seeks the opinion of the Committee on whether it is permissible under the Rules of Professional Conduct for him as the attorney for a party claiming to have suffered damages to directly contact the alleged tortfeasor, who is insured, prior to that alleged tortfeasor’s “appointment ... of counsel”. This contact was also stated to be at a time after a claims adjuster was assigned by the alleged tortfeasor’s insurance company to deal with the claim involved. Thus, the inquirer also seeks guidance under the Rules of Professional Conduct as to what effect the alleged tortfeasor’s communication with the claims adjuster will have on the inquirer’s ability to make direct contact with that alleged tortfeasor.

In the context of the RPCs the word “know” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.

In terms of compliance with Rule 4.2, the highest level of caution is advised for the inquirer in deciding whether to make any direct contact with an adverse party believed to be liable for damages to the inquirer’s client when that adverse party has already begun a course of negotiations with his insurer relating to those damages. In Washington State, the attorney client relationship and whether it exists is determined from the perspective of the client. See In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 48 P.3d 311 (Wash. 06/20/2002). The existence of an attorney-client relationship turns largely on the client`s belief that it exists. Where there is a reasonable basis for an attorney to believe that a party may be represented, the attorney`s duty is to determine whether the party is in fact represented. See In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 48 P.3d 311 (Wash. 06/20/2002) citing Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992) and In re Disciplinary Proceeding Against McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983).

The adverse party’s reasonable belief that he is represented by an attorney is a highly material factor in determining whether representation exists for the purposes of complying with Rule 4.2. It must be taken into consideration that an insured who is an adverse party will frequently be a layperson not very familiar with the implementation of obligation to defend, selection of counsel, and other relevant terms and conditions in insurance coverage agreements. This unfamiliarity may lead such an insured into what arguably may be seen as an objectively reasonable belief that he or she currently has the benefit of counsel, particularly where a claims adjuster has already been contacted and the insured is in the course of dealing amicably with his insurance company.

The allowance made in Washington case law for what apparently would otherwise be the unauthorized practice of law by claims adjusters (See Jones v. Allstate Insurance Co., 146 Wash.2d 291, 45 P.3d 1068 [Wash. 05/09/2002]) exists only in the context of its role as a “shield” for insureds in the form of a heightened standard of care. It is not a “sword” which entitles claim adjusters to form attorney-client relationships with their insureds vis-à-vis third parties. This also holds true with specific regard to the application of Rule 4.2 of the RPC.

In the view of the Committee, counsel for a claimant may, in many circumstances, contact an alleged tortfeasor as an unrepresented party. Thus, to the extent that the inquiring attorney can proceed under the standards outlined above to contact the alleged tortfeasor as an unrepresented party, the nature of the inquirer’s role and interest will need to be clearly expressed. This is a requirement of Rule 4.3. In order to avoid a misunderstanding, an attorney will need to identify the attorney`s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.3 comment [1] (2003). Rules 4.1 and 8.4, of course, will apply to any and all of the inquirer’s communications to third parties in the course of the subject representation, regardless of who is their recipient.