The Office of General Counsel issued the following informal opinion on July 12, 2001, representing the position of the New York State Insurance Department.
Re: Independent Adjusters Contact with Claimant Represented by Counsel
Is it improper for an independent adjuster to communicate directly with a claimant known to be represented by counsel?
No Insurance Law statute or regulation expressly relates to the issue in question. However, this issue is discussed in Appleman, Insurance Law and Practice , § 8648 (West Publishing Co. 1981), which refers to a 1939 agreement, periodically amended, made by the National Conference of Lawyers, Insurance Companies, and Adjusters formed under the sponsorship of the American Bar Association and approved by various insurance organizations (the American Insurance Association, American Mutual Insurance Alliance, International Claim Association, National Association of Independent Insurance Adjusters, and the National Association of Independent Insurers) to provide guidance as to the boundaries between proper claims practices and the unauthorized practice of law. As quoted in Appleman: "[t]he companies or their representatives will not deal directly with any claimant represented by an attorney without the consent of the attorney."
The above ethical prohibition involving adjusters is consistent with the well-known obligation of an attorney not to communicate with a person represented by counsel, set forth in Rule 4.2 of the American Bar Association Model Rules of Professional Conduct: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person 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."
The Department has previously answered inquiries of this nature with the same conclusion that it is unethical for an adjuster, or any other licensee, to communicate directly with an insured or claimant represented by counsel as there is a real or potential adverse interest or conflict of interest. Unethical conduct in a licensee may be considered tantamount to untrustworthiness, and may be prosecuted by the Department pursuant to N.Y. Ins. Law § 2110(a)(4) (McKinney 2000).
For further information, you may contact Associate Attorney Jeffrey A. Stonehill at the New York City Office.