Advisory Opinion:
2150
Year Issued:
2007
RPC(s):
RPC 4.2
Subject:
With whom a lawyer may communicate regarding ongoing L&I claims administration when a distinct part of an L&I claim is in litigation
The inquiring lawyer’s letter to the Committee seems to focus primarily on the question of whether a “third party administrator,” which handles workers compensation claims for self-insured employers, is a represented party for purposes of RPC 4.2’s “no contact” rule.
ANALYSIS
The Committee answered this question affirmatively earlier this year in Informal Ethics Opinion 2112:
“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.”
In addition, RPC 4.2 permits counsel to communicate directly with the employee/adjuster administrator or third-party administrator if she/he first seeks and obtains consent for such from opposing counsel. This is always an appropriate practice, even when there is a good argument that the subject of the desired communication lies outside the scope of the representation between the “administrator” and opposing counsel.
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