98-1.

• Case Date: January 16, 1998
• Court: Alaska

Alaska Ethics Opinion 1998. 98-1. Ethics Opinion No. 98-1 Contact with Defendant's Insurer.The Committee has been asked to revisit Ethics Opinion No. 78-4 concerning the propriety of direct contact with an insured's insurer by an attorney representing the plaintiff when the plaintiff's attorney knows that the insured is represented by counsel. In Ethics Opinion No. 78-4, the Committee concluded that the plaintiff's attorney in personal injury litigation is not entitled to either contact or continue discussion with a claims representative of the defendant's liability insurer without the consent of the insured's attorney. In the Committee's view, the bar of Opinion No. 78-4 is no longer valid. Unless the plaintiff's attorney has actual knowledge that the insurer is represented by counsel in the matter at issue, an attorney representing the plaintiff in personal injury litigation does not violate Rule 4.2 by contacting or communicating with a claims representative or other agent of the defendant's insurer concerning the matter. Discussion Rule 4.2 of the Alaska Rules of Professional Conduct ("ARPC") provides the focus for the Committee's analysis: In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party or person the lawyer knows to be represented by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. ARPC 4.2 (emphasis added). In light of Rule 4.2, the specific issue is whether the plaintiff's attorney, having knowledge of the insured's representation, is barred from communicating with the insurer on the premise that "knowledge" that an insured is represented by counsel constitutes the "knowledge" that the insurer (endnote 1) is also represented by that same lawyer. The word "'knows' denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances." ARPC 9.1 (f). Thus to violate Rule 4.2, the plaintiff's lawyer must have actual knowledge that the insurer is represented by insured's counsel. While multiple representation by the insured's attorney is often allowable, there is clearly no rule of law in Alaska which requires (endnote 2) the insured's lawyer to represent the insurer. See AS 21.89.100 (separate counsel for insured, paid for by the insurer, is authorized in...