When a claimant has not retained legal counsel, direct communication between the insurance carrier, third party administrator, or self-insured employer with the unrepresented claimant is the only way to gather pertinent information related to the claim. Communication is allowed with unrepresented claimants. But, in order to avoid potential ethical issues, adjusters and defense attorneys should avoid giving the claimant legal advice, other than advising the person to seek legal representation. [N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.0 Rule 4.3]
Once a claimant retains legal representation; either hiring an attorney or a Licensed Hearing Representative, contact with regard to legal issues related to the claim must be made through claimant’s counsel. It is clear that defense attorneys are prohibited from direct communication with claimants represented by counsel by the Rules of Professional Conduct. However, employees of the insurance carrier, such as adjusters, are also prohibited from direct communication with represented claimants.
Attorneys in New York are governed by the Rules of Professional Conduct which provides in part at 22 NYCRR 1200.0 [Rule 4.2 Communication with person represented by counsel]:
1. (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.
2. (b) Notwithstanding the prohibition of paragraph (a), and unless otherwise prohibited by law, a lawyer may cause a client to communicate with a represented person unless the represented person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented person’s counsel that such communications will be taking place.
Violation of this professional rule of conduct subjects the attorney to disciplinary action. The Rules of Professional Conduct prohibit not only the attorney from communicating with the represented claimant but also prohibits the attorney from directing another individual to communicate with the claimant, who is known to be represented by counsel.
Any carrier/employer contact regarding settlement must be through legal counsel. Direct contact with a represented claimant regarding settlement is not allowed. In fact, a formal opinion by ‘The Association of the Bar of The City of New York Committee on Professional and Judicial Ethics” opines “sending a letter or email to a represented person, and simultaneously sending a copy of the communication to counsel, is impermissible … unless the represented person’s lawyer has provided prior consent to the communication or the communication is otherwise authorized by law.” [Link]
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