Advisory Opinion:
2112
Year Issued:
2006
RPC(s):
RPC 4.2
Subject:
May a lawyer directly contact a claims management agent
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.
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