91 N.J.L.J. 369
June 6, 1968
Contacting Adversary's Insurer
The following inquiry has been submitted for this Committee's
After a negligence suit has been
instituted, under what circumstances may
counsel for the plaintiff communicate directly
with the liability insurance carrier of the
defendant or with the Unsatisfied Claim and
Judgment Fund Board?
A wide variety of hypothetical situations is here possible; however, this Committee must assume the facts incident to the ordinary case, i.e., that suit has been instituted, coverage under
the policy is not disputed and the policy limit is ample to cover any potential recovery. Further, we assume that the carrier has accepted the obligation to defend and has retained counsel designated by it to appear as attorney of record for the defendant, its named insured.
Under such circumstances Canons of Professional Ethics, Canon 9 requires that counsel for the plaintiff refrain from communicating with the carrier unless he secures express permission from its attorney of record authorizing such communication.
It is unethical to participate in such communication with the carrier whether the communication is initiated by a non-attorney representative of the carrier or by counsel for the plaintiff. Furthermore, if the express authorization from defendant's counsel of record is limited, the communication must be confined within such limits.
This opinion is consistent with our Opinions 81, 88 N.J.L.J. 469 (1965), and the authorities therein cited and also with informal Opinions 523 and 670 (1962) of the American Bar Association's Committee on Professional Ethics. See also N.Y. County Lawyers Assn., Committee on Professional Ethics, Opinion 47 reported in 39 New York State Bar Journal 457 (Oct. 1967).