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On August 24, 1965 the New York Law Journal printed Questions #544 and 545, together with the answers given by your Committee, with reference to said questions. While I readily understand the basis for the decisions given by your Committee to the questions propounded, I would respectfully draw your attention to the following set of circumstances, and desire to know whether Such circumstances would effect the comments previously given by you.
Assume that an assured has already appeared by counsel provided by the insurance company, but assume that such insured had only a $10,000 policy and that claimant’s attorney had instituted suit in excess of the $10,000 policy, and that in reality the claim on behalf of the injured party was reasonably worth a settlement far in excess of the $10,000, and assume further that the insurance company by Its counsel had sent to its insured its “usual limited coverage” letter wherein the insurance company notified its insured that it was representing him only up to the limits of liability of the policy issued by it, and that the insured was free to retain counsel of his own choosing to represent his interest in excess of the policy limits Under these circumstances, and subsequent to the sending of such a letter by the attorneys for the insurance company, would it then be improper for the claimant’s attorney to communicate with the insured asking him to provide claimant’s attorney with the name of his personal attorney who is representing his interest in excess of the policy, particularly where a copy of such letter is sent to the insurance carrier?
It is the committee’s opinion that the proposed communication, if limited strictly to an inquiry for the personal attorney’s name and address, would not violate the language, spirit or intent of Canon 9 which prohibits a communication “upon the subject of controversy.” Rather, it would seem to serve the purpose of the canon which seeks to channel all dealings to the attorneys.
Dated: October 5, 1965