88 N.J.L.J. 469
July 22, 1965
Communication with Opposing Parties
An inquirer presents the following factual situation.
A minor driving his father's car becomes involved in an
accident resulting in serious injury to a third person and a suit
for damages against both minor and parent. The severity of the
injuries indicates the possibility of a verdict in excess of
insurance coverage. Under terms of the policy, the insurance
company provides counsel to represent the minor and his parent.
On these facts, the inquirer asks:
A. May the attorney for the plaintiff communicate directly with the parent or infant during the pendency of the suit?
B. Would the fact that the possible damages are substantially in excess of the applicable policy limits be a factor in this decision?
C. May the attorney for the plaintiff advise the father and the infant that, because of the likelihood of the excess verdict, they should obtain personal counsel to represent them for the amount above the policy limits?
D. In the event that personal counsel is not designated by the infant and parent, or they do not affirmatively request the counsel designated by the insurance company to represent them for the coverage, may the attorney for the plaintiff then deal directly with the parent and infant?
The position of the minor as a party defendant involves questions of procedural law on which we will not comment. The questions will herein be treated as though the minor was represented by an appropriate guardian with no basis for any distinction in the ethical questions raised.
Canons of Professional Ethics, Canon 9 is relevant to the questions raised. It provides:
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.
This canon applies to counsel in all cases including those where defense counsel is furnished under automobile casualty insurance policies.
The first sentence above quoted is clear and convincing. The reasons for such a prohibition are equally clear. They arise out of the nature of the relation of attorney and client and are equally imperative in the right and interest of the adverse party and of his attorney. To preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches the Canon is wise and beneficent and should be obeyed. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 108 (1934).
The Committee on Professional Ethics of the New York County Lawyers' Association in answer to a similar question recently gave its opinion as follows:
Of course, after the insured is represented by counsel, the same Canon provides that an attorney should not communicate upon the subject of controversy with a party represented by counsel. We do not believe that the fact that the counsel is furnished by the insurer changes the prohibition. Answer to Question No. 531, May 10, 1965.
Also see Radio Taxi Service, Inc. v. Lincoln Mutual Insurance Co., 31 N.J. 299, 313 (1960), opinion of Justices Jacobs and Burling, dissenting on other grounds.
In the particular circumstances on which the inquiries are based, it is the opinion of this Committee that the defendants would be well served if they were advised of the possibility of damages exceeding the insurance coverage. It would indeed be proper for plaintiff's counsel to so notify defendants provided, however, that he did so through defendants' insurance counsel.