LEO 1326

LEO: Communication With One of Adverse LE Op. 1326

Communication With One of Adverse Interest - Multiple

Representation - Personal Injury Practice: Plaintiff's

Attorney in a Personal Injury Action Communicating

With Defendant Who is Represented by Uninsured

Motorist Carrier's Attorney.

February 27, 1990

You have advised that you represent the plaintiff in a personal injury

action arising out of an automobile collision in which the defendant is

uninsured, although his identity is known, and suit has been filed in

accordance with Virginia Code § 38.2-2206. You further indicate that an

attorney representing the uninsured motorist carrier has filed an answer

in the name of the carrier only. That attorney asserts that it would be

ethically improper for you, as plaintiff's attorney, to communicate

directly with the named defendant and, further, that he intends to

identify himself at trial as representing or appearing on behalf of the

named defendant.

You have requested that the Committee opine as to the propriety of

plaintiff's counsel communicating directly with the defendant, assuming

that the defendant agrees to such communication. Secondly, you have

inquired if the uninsured motorist carrier's attorney may properly

identify himself to the jury as representing the interest of or appearing

on behalf of the named defendant when the attorney has filed responsive

pleadings only in the name of the uninsured motorist carrier.

The Committee is cognizant of the provisions of § 38.2-2206(F) which

permit the uninsured motorist carrier (insurer) to "file pleadings and

take other action allowable by law in the name of the owner or operator of

the uninsured ... motor vehicle or in its own name." (emphasis added) The

same subsection indicates that the owner or operator of the uninsured

motor vehicle is not precluded "from employing counsel of his own choice

and taking any action in his own interest in connection with the

proceeding." The Committee is of the view that the issue of whether or not

an attorney-client relationship exists between the attorney representing

the uninsured motorist carrier/defendant and the (identified) uninsured

motorist/defendant, in the circumstances you describe, requires a legal

and factual determination which is beyond the purview of the Committee.

In the event that it is determined that an attorney/client relationship

does exist, the appropriate and controlling rule of the situation is DR:

7-103(A)(1) which prohibits a lawyer, during the course of his

representation of a client, from communicating on the subject of the

representation with a party he knows to be represented by a lawyer in that

matter unless he has the prior consent of the lawyer representing such

other party or is authorized by law to do so.

The Committee has previously opined that where the defendant in personal

injury litigation is represented by counsel, it is improper for the

plaintiff's attorney to contact the defendant's insurer without consent of

counsel for the defendant and his insurer. (See LE Op. 687) Similarly,

the Committee opined that communication with a party's attorney or

authorization by law, even where the individuals are parties in different

but related matters. (See LE Op. 1281; see also ABA Informal Decision

570 (August 23, 1962)) Thus, if a factual determination is made that the

attorney representing the uninsured motorist carrier also enjoys an

attorney/client relationship with the uninsured motorist/defendant, the

Committee is of the opinion that it would be improper for plaintiff's

counsel to communicate directly with the (individual) defendant absent

consent from the attorney and despite any agreement by the defendant. The

plain language of DR:7-103(A)(1) requries the "prior consent of the

lawyer representing such other party" and makes no provision for any

agreement of the defendant to override such prerogative of the lawyer.

Conversely, in the event that a determination is made that no

attorney/client relationship exists, the appropriate and controlling rules

are DR:7-103(A)(2) and DR:7-103(B). The former mandates that, in the

course of his representation of a client, a lawyer shall not give advice

to a person who is not represented by a lawyer, other than the advice to

secure counsel, if the interests of such person are or have a reasonable

possibility of being in conflict with the interests of his client. The

latter rule requires that a lawyer dealing on behalf of a client with an

unrepresented person shall not state or imply that the lawyer is

disinterested. Further guidance is available in Ethical Consideration 7-15 [

EC:7-15] which provides, in pertinent part, that "[i]f one is not

represented by counsel, a lawyer representing another may have to deal

directfy with the unrepresented person; in such an instance, a lawyer

should not undertake to give advice to the person who is attempting to

represent himself, except that he may advise him to obtain a lawyer."

Prior LE Op. 550 permits a personal injury plaintiff's attorney's

investigator to interview the adversary driver or witnesses without the

consent of counsel for such parties or witnesses unless the attorney or

his investigator knows or has reason to know that the party is represented

by counsel. (emphasis added) It remains the opinion of the Committee that

it would not be improper for the plaintiff's attorney to communicate with

the uninsured motorists, provided that (1) no advice is given, (2) the

lawyer does not state or imply that he is disinterested, and (3) the

plaintiff's attorney does not know or have reason to know that the

uninsured motorist is represented by counsel. (See also LE Op. 1019, LE

Op. 1112, and LE Op. 1156)

With regard to the question you have raised regarding the identification

of the attorney representing the uninsured motorist carrier also

identifying himself as representing the interest of or appearing on behalf

of the named defendant, even though pleadings have been filed only in the

name of the carrier, the appropriate and controlling rules are DR:7-105(

B)(1) which requires that a lawyer shall disclose to a tribunal that he

appears in a representative capacity, and DR:7-102(A)(5) which requires

that in representing a client, a lawyer shall not knowingly make a false

statement of law or fact.

As noted above, the determination of whether the carrier's attorney also

enjoys an attorney/client relationship with the uninsured motorist

requires a legal and factual conclusion under § 38.2-2206(F) which is

beyond the purview of this Committee. Should it be determined that such a

relationship does not exist, the Committee opines that it would be

improper for the carrier's attorney to identify himself as appearing on

behalf of the named defendant. (See LE Op. 743 and LE Op. 768)

Conversely, should it be determined that an attorney/client relationship

does exist, he would be required to inform the court of his representation

of the uninsured motorist.

Finally, in the event that it is determined that an attorney/client

relationship does exist, the Committee cautions that the fact situation

you have described would raise other ethical concerns regarding the

propriety of such multiple representation.

Committee Opinion February 27, 1990

CROSS REFERENCES