|CONTACT OF OPPOSING
FORMAL OPINION 36
IMPROPER FOR ADJUSTERS TO OBTAIN INFORMATIONFROM PLAINTIFF'S PHYSICIAN AFTER SUIT FILEDWITHOUT CONSENT OF PLAINTIFF.
QUESTION: Is it proper after suit is filed, for either lay or lawyeradjusters working for a Liability Insurance Company, to go to the Plaintiffsattending physician and attempt to obtain from such physician fullinformation concerning the nature and extent of the injuries suffered byplaintiff-patient, without the consent of the plaintiff?
ANSWER: The Advisory Committee is of the opinion that suchaction is not proper.
[Rule 4 4.2; 8.4(c) and (d)]
FORMAL OPINION 83
ATTORNEY FOR PLAINTIFF CANNOT PROPERLY DISCUSSCASE WITH DEFENDANT AFTER KNOWING DEFENDANT ISREPRESENTED.
QUESTION: Is it proper and ethical for a lawyer representing aplaintiff in a claim against a defendant, whose liability is covered byinsurance, to discuss the case with defendant after he knows the defendantis represented by counsel furnished by the insurance carrier in its contractof insurance coverage?
ANSWER: The Advisory Committee is of the opinion that it isimproper for plaintiff's attorney to discuss the case with the defendant afterdefendant has been furnished counsel by his insurance carrier and this isknown by plaintiff's attorney.
Canon 7 DR7-104(A)(1)
[Rule 4 4.2]
FORMAL OPINION 90
IMPROPER FOR COUNSEL IN EXCHANGES OR CORRESPONDENCE RESPECTING THE SUBJECT OF THECONTROVERSY TO SEND COPIES THEREOF TO THECLIENT OF THE OPPOSING COUNSEL.
QUESTION: Is it proper for a Missouri lawyer in correspondingwith opposing Counsel respecting the subject of the controversy to sendcopies thereof to such Counsel's client?
ANSWER: The Advisory Committee is of the opinion that suchpractice is improper. Missouri Supreme Court Rule 4 provides that it isimproper for a lawyer to communicate in any way upon the subject ofcontroversy with a party represented by Counsel. A person retains a lawyerto represent and advise him respecting a controversy. Rule 4 is designed toallow the lawyer to function properly in his role free from interference byopposing Counsel. The sending of copies of correspondence to opposingCounsel's client is within the proscription of the Rule and improper unlessby expressed consent.
[Canon 7 DR7-104(A)(1); Rule 4 4.2]
FORMAL OPINION 96
LAY INSURANCE ADJUSTERS
NOT UNAUTHORIZED PRACTICE FOR LAY INSURANCEADJUSTERS EMPLOYED BY LIABILITY INSURANCECOMPANY TO ADJUST AND SETTLE CLAIMS FORCOMPANY'S ASSURED AFTER SUIT IS FILED. ATTORNEYFOR PLAINTIFF NOT IN VIOLATION OF SUPREME COURTRULE 4 IN NEGOTIATING WITH SUCH LAY ADJUSTER IFDONE WITH KNOWLEDGE AND CONSENT OFDEFENDANT'S COUNSEL.
QUESTION: A liability insurance company employs lay adjusters.Suit is filed against an insured of such liability insurance company and thecompany then employs an attorney who enters his appearance and filespleadings on behalf of the defendant. The lay adjusters thereafterundertake to deal with and to engage in settlement negotiations directlywith the attorney representing the plaintiff in which the possibilities and/or probabilities of recovery are discussed. Are the adjusters practicing law?Is the attorney for plaintiff in violation of Missouri Supreme Court Rule 4in that he is dealing with such lay adjusters instead of dealing only with thecounsel representing the defendant in the pending litigation?
ANSWER: The Advisory Committee is of the opinion that such layadjusters are not practicing law provided such lay adjusters are determiningonly the pecuniary limit which the company will be willing to offer or pay insettlement, and provided further said lay adjusters do not attempt todetermine the legal liability of the company or its insured, but arrive attheir conclusions as to the amount to be offered either regardless of legalliability or upon the advice of a licensed attorney whether such attorney bethe attorney who filed the responsive pleading or any other licensedattorney.
The Advisory Committee is further of the opinion that the attorneyfor plaintiff is not in violation of Supreme Court Rule 4 in dealing with suchlay adjusters, instead of dealing only with counsel representing thedefendant in the pending litigation, provided that such discussions andnegotiations are conducted with the knowledge and consent of the counselwho has filed the responsive pleadings representing the defendant in thepending litigation.
[Canon 2 DR2-102(A)(2); Rule 4 4.2]
(Opinion omitted. See Notes on Use.)
(Opinion omitted. See Notes on Use.)
(Opinion omitted. See Notes on Use.)
QUESTION: A is charged with the violation of state law whereinV is the victim. A retains C to represent him in the matter. V is notrepresented.
1. May C contact V concerning the subject matter of the suit? ANSWER: Yes.
2. May C request V consider signing an affidavit of nonprosecutionwherein V would formally state that V does not desire the criminal actionto proceed further? ANSWER: Yes, if no consideration is proposed forsigning such affidavit.
3. Must C obtain permission from the prosecuting attorney's officeprior to contacting V or any other witness in the criminal action? ANSWER: No.
4. Does the prosecuting attorney's office have an attorney-clientrelationship with V?
(a) If so, is there a conflict of interest with the interests of the Stateof Missouri?
ANSWER: See above.
(b) May the prosecuting attorney claim to represent V without V'sconsent?
(c) May the prosecuting attorney claim to represent V over V'sobjections?
(d) May the prosecutor's office prohibit C from contacting V or anyother potential witness at trial, and if so, under what circumstances?
ANSWER: Not unless a court order prohibiting such contact isobtained.
(e) May the prosecutor properly instruct V or any other witness inthe criminal action not to communicate with C concerning the subjectmatter of the suit?
ANSWER: The prosecutor can advise V he does not have tocommunicate with C, but V doesn't have to abide by the prosecutor's advice.
V approaches C and requests C represent V as well as A. V is notcharged with any offense against the laws of the State of Missouri, but feelsthat he is in need of representation in his dealings with the prosecutor'soffice.
5. May C agree to represent V, and if so, under whatcircumstances?
V obtains counsel, either retained or appointed. During pretrialproceedings, and after V informs the prosecutor of a desire not to testify,C overhears the prosecutor attempting to change V's mind. During thecourse of that conversation C overhears the prosecutor intentionallymisrepresent facts and the law in his effort to change V's mind.
6. May the prosecutor communicate with V without first complyingwith the provisions of DR7-104(1)?
ANSWER: Yes, if the interview of the state and V are not adverse.
7. May C advise V to contact V's own lawyer for advice prior toacceding to the prosecutor's desires?
8. May the prosecutor advise V as to the law concerning the subjectmatter of the action where the prosecutor is aware that V retained privatecounsel (DR7-104)?
ANSWER: If the advice concerns only the criminal law, this ispermissible.
9. What, if any, is C's duty concerning reporting the prosecutor'sapparent intentional misrepresentation of law and facts to V?
ANSWER: Same as 7 advise V to contact V's own lawyer adviceprior to acceding to the prosecutor's desires.
10. Is there a "Prosecutorial Exception" to the Canons of Ethics,and if so, what does it encompass?
Rendered November 7, 1980.
[Rule 4 4.2]
QUESTION: A is a private attorney retained by and representingCorporation X. B is an attorney employed by and working as in-housecounsel for Corporation Y. Corporation Y is engaged in the interstatetransportation of goods by rail. Corporation X made a reasonable requestpursuant to the Interstate Commerce Act for Corporation Y to transportgoods for Corporation X.
A was retained by X to compel Y to transport goods. A advised X tocontinue making requests for transportation to Y. A has prepared severalrequests for Y to transport X's goods. Each of these requests was signed byX's vice-president. These requests as made by X's vice-president to Y'spresident include:
1. A short summary of the facts surrounding Y's refusal totransport;
2. Y's statutory obligation to transport;
3. The additional cost and expense incurred by X because of Y'srefusal to transport.
Does A's preparation of the request because made directly to Y'spresident rather than to Y's legal department violate any Disciplinary Rule?
ANSWER: No. It is the Committee's opinion that it is not improperfor the lawyer representing a corporate client to prepare communicationsfor the corporate client's officer to give directly to a corporate officer of anopposing party without going through the legal department of the opposingcorporation. The Committee reaches this conclusion because it is theiropinion that a demand made to in-house counsel of a corporation does notnecessarily meet the legal requirements of a demand upon the corporationitself. Rendered September 11, 1981.
[Rule 4 4.2]
INFORMAL OPINION 930118
QUESTION: Attorney represents client in a slip and fall case. Canattorney conduct ex parte interviews with management employees ofdefendant or an employee of defendant who was present at the scene? Onemanagement employee is no longer employed by defendant.
ANSWER: Rule 4.2 prohibits ex parte contact with any of theseindividuals. This rule does not prohibit investigation to locate an individualas long as no information is sought from the individual once he is located.
INFORMAL OPINION 930133
QUESTION: Attorney wishes to assert an attorney's lien againsta former client who is now being represented by another attorney. Mayattorney serve the notice directly on the former client?
ANSWER: Attorney may only serve the former client directly if thenew attorney refuses to accept service on behalf of the former client.
INFORMAL OPINION 930138
QUESTION: May Attorney make ex parte contact with threewitnesses who work for a company whose driver was involved in an accidentwhich is the subject of a suit? Witness #1:driver, dismissed as defendant,former employee, has been deposed. Witness #2:another driver forcompany, not involved in accident. Witness #3:another driver and vehiclemaintenance, former employee, not a defendant.
ANSWER: Witness #1: No. Witness #2: Yes. Witness #3: Not ifthis witness had any maintenance responsibility involving the vehicle in theaccident regardless of whether the witness fulfilled that responsibility.
INFORMAL OPINION 930161
QUESTION: Attorney is employed by a government agency in anon-attorney position which includes criminal investigations. The subject ofa criminal investigation is also involved in related civil litigation with theagency and is represented by counsel. May Attorney interview the subjectwithout going through the subject's counsel?
ANSWER: Rule 4-4.2 prohibits communication with a representedparty "in representing a client." If Attorney is not practicing law, Attorneywould not be representing a client and Rule 4-4.2 would not apply. However, if Attorney is operating at the direction of an attorney who ispracticing law, Attorney's conduct would be prohibited by Rule 4-8.4(a)because the attorney directing the conduct would be prohibited fromcontacting a represented party by Rule 4-4.2.
INFORMAL OPINION 930164
QUESTION: Attorney represents a client against a corporationwhich has counsel. May Attorney communicate regarding the subject of therepresentation with an unrepresented former employee of the corporation? What if the person was an independent contractor instead of an employee?
ANSWER: Rule 4.2 applies the same to former employees as it doesto current employees. State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202(Mo. banc 1993), indicates that the test depends on function rather thantiming. The analysis to be used is found in the comments to the rule whichwere expressly adopted by the Court in Pitts. The term "person" in thecomments can apply to an independent contractor as well as an employee.
[4.2; State ex rel. Pitts v. Roberts]
INFORMAL OPINION 940017
QUESTION: Does Rule 4-4.2 apply in FELA cases the same as inother cases?
ANSWER: Rule 4-4.2 applies but that rule allows ex parte contactif "the lawyer . . . is authorized by law to do so." It is necessary to look tocourt decisions for interpretation of how statutes such as the FELAstatutes apply to the facts of each particular case.
[4.2; 45 U.S.C § 60]
INFORMAL OPINION 940063
QUESTION: Attorney is practicing as a visiting attorney in a casein a jurisdiction in which Attorney is not licensed. Attorney would like tomake ex parte contact with former employees of the opposing corporateparty. The former employees were not upper level management but mayhave been lower or middle level management. The former employees werenot involved in the occurrence giving rise to the suit. The rules of thejurisdiction in which the suit will be heard may allow such contact. IfAttorney may not contact the former employees directly, may Attorney'sclient discuss the matter with the former employees if Attorney does not"coach" the client.
ANSWER: If the former employees were management at any level,Attorney may not engage in ex parte contact with those employees. If theformer employees were not management, the remainder of the analysis setout in the comment to Rule 4-4.2 must be performed. If the client engagesin ex parte communications with the former employees, Attorney will notbe violating Rule 4-8.4 by having another person do what the attorney maynot do if Attorney has not, in any way, expressly or impliedly indicated tothe client that he should engage in such communication. Because Attorneyis licensed in Missouri, the Missouri rules will apply under Rule 4-8.5although the case is in another jurisdiction.
[4.2; 8.4; 8.5]
INFORMAL OPINION 940073
QUESTION: Attorney represents a client against a corporation.Attorney has been contacted by a former employee of the corporation withwhom ex parte contact would be prohibited by Rule 4-4.2. The formeremployee has informed Attorney that he has information which would behelpful in the suit but that there are legal issues regarding his ability toprovide the information. The former employee has retained his ownattorney regarding these issues. May Attorney contact this attorney ratherthan the corporation's attorney for permission to speak with the formeremployee.
INFORMAL OPINION 940097
QUESTION: In a worker's compensation case, employer's attorneyrequests a medical examination of the employee. During the examination,the physician tells the employee he will send a copy of his report to theemployee's attorney. After several weeks and the report has not beenreceived, the employee's attorney telephones the physician and inquiresabout the status without discussing substantive matters. Is this animproper ex parte contact?
ANSWER: The limited contact described, under the specificcircumstances described, would not violate the Rules of ProfessionalConduct.
INFORMAL OPINION 940098
QUESTION: Attorney asks about giving a second opinion at therequest of an individual who is represented by another attorney in apending matter. Does providing a second opinion violate the Rules?
ANSWER: Providing a second opinion to a client of anotherattorney does not violate any provision of the Rules of Professional Conductas long as the client is the one who has initiated the contact.