Opinion 2005-2
(April 2005)

The inquirer represents a truck driver who suffered serious injuries in a motor vehicle accident during the course of his employment.  The driver of the other vehicle was at fault.  The inquirer pursued three sources of recovery for the client: (1) workers compensation benefits; (2) a third party claim against the driver of the other vehicle who has a policy limit of $25,000, and (3) underinsured motorist benefits with a policy limit of $100,000.  

 

The workers compensation insurer is paying lost wage and medical benefits.  The insurance company for the other driver has tendered the $25,000 policy limit.  Inquirer has not yet settled the underinsured motorist claim, but inquirer believes that the full $100,000 will be offered to the client. 

 

The workers compensation insurance adjuster, in discussing with the inquirer the workers compensation subrogation lien, limited the discussion of the lien to the $12,000 net proceeds to the client from the third-party action and stated that there could be no subrogation lien in the underinsured motorist action.  This, according to the inquirer, is wrong as a matter of law.   In fact, according to the inquirer, workers compensation carriers have the right to a subrogation lien in the proceeds of an uninsured motorist action. 

 

The inquirer's question is whether he or she has an ethical obligation to disclose to the workers compensation insurance adjuster that the law permits the carrier to have a subrogation lien in the proceeds from the underinsured motorist claim.  Of course, if inquirer made this disclosure, the adjuster would demand a share of the client's recovery from the underinsured motorist claim. 

 

Pennsylvania Rule of Professional Conduct 4.1 (the "Rules") does not compel disclosure because the inquirer has not made a false statement of material fact or law.  The omission at issue, i.e., the failure to correct the mistake of law, is not the kind of false statement Rule 4.1 would prohibit.  Furthermore, the committee concludes that Rule 8.4's prohibition of dishonesty, fraud, deceit or misrepresentations does not require the correction of the adjuster's mistake of law.  Finally, Rule 3.3 does not compel disclosure because there have been no representations of law made to a tribunal in the facts presented.

 

For these reasons, the committee has concluded that the inquirer has no ethical duty to comment on the adjuster's mistake of law.

 

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.