ETHICS OPINION 520-1963 IMPROPRIETIES

NUMBER 520

QUESTION.

 

Once a potential defendant in an accident case in represented by an attorney, it is of course improper for the plaintiff’s attorney to contact the potential defendant without the permission and consent of the latter’s attorney.

 

Query: Is it proper to contact the potential defendant while discussing the case with his insurance company but before an attorney has appeared in the picture in behalf of the said defendant?

 

ANSWER.

 

The question is governed by Canon 9, which reads as fo11ows: “A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”

 

In the opinion of a majority of the Committee, assuming strict compliance with the second sentence of Canon 9, it would be proper for the attorney to communicate with the potential defendant. Until such time as an attorney has been notified that counsel for a potential defendant has been retained either directly or through an insurance company, the attorney is free to communicate directly with such party provided that this is done in a forthright and ethical manner in accordance with the Canon. The fact that the case has already been discussed with the opposing party’s insurance carrier does not alter the situation.