Opinion 98-2
(February 1998)

The inquirer is counsel for the plaintiff in a medical malpractice action against a defendant. The inquirer has informed the counsel for the defendant that he wants to settle the case, but defense counsel is unwilling. The inquirer wants to negotiate directly with the defendant's medical malpractice insurance carrier. Defense counsel has told the inquirer however, not to do so, advising him that, absent defense counsel's consent, such contact with the carrier would violate the Pennsylvania Rules of Professional Conduct. The inquirer asks whether it is permissible to enter into settlement negotiations directly with the carrier.

Rule 4.2 of the Pennsylvania Rules of Professional Conduct states: "In representing a client, a lawyer shall not 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 consent of the other lawyer or is authorized by law to do so." At issue here is whether defense counsel represents the carrier as well as the defendant. Defense counsel has informed the inquirer that it would be improper for the inquirer to contact the carrier directly, thus implying that the carrier is his client. If the carrier is defense counsel's client, Rule 4.2 prohibits the inquirer from contacting the carrier about settlement without appropriate consent. To avoid violating Rule 4.2, the inquirer should first ask defense counsel whether, in fact, he is representing the carrier. If defense counsel answers that he is not representing the carrier, then the inquirer may contact the carrier directly. If defense counsel answers that he is representing the carrier, or if defense counsel refuses to answer the inquirer's questions, the inquirer may not contact the carrier, though the inquirer may wish to bring the issue to the Court's attention for the purpose of advancing the prospects of settlement.

 

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.