New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on November 21, 2006 representing the position of the New York State Insurance Department.

Re: Communicating Directly with a Third Party Claimant Represented by Counsel

Question Presented:

May an insurer communicate directly with a third party claimant represented by counsel?

Conclusion:

No. Please see analysis below.

Facts:

No specific facts were provided.

Analysis:

The Insurance Department’s consistent position on this matter1 is that once a claim is filed and the insurer knows that the third party claimant is being represented by counsel, ethical standards of conduct require that any necessary communications be made to the counsel rather than to the third party claimant.2

An insurer, or its representatives, may not communicate directly with a claimant represented by counsel without counsel’s consent as there is a real or potential conflict of interest inherent in the unauthorized communications.

Furthermore, a licensee who engages in such action may be found to have committed a "determined violation" pursuant to N.Y. Ins. Law § 2402(c) (McKinney Supp. 2005) as an unfair or deceptive act or practice. Additionally, if the licensee is an insurance agent, insurance broker, reinsurance agent, reinsurance intermediary, insurance consultant or adjuster, the communication may be deemed an untrustworthy act and thus grounds for revocation of a license pursuant to N.Y. Ins. Law § 2110(b)(4) (McKinney 2005).

For further information you may contact Principal Attorney Paul Zuckerman at the New York City office.


1 See OGC Op. 02/18/2005; OGC Op. 07/12/2001; OGC Op. 10/02/1996.

2 See e.g., Appleman, Insurance Law and Practice § 8648 (West Publishing Co. 1981), which states that an insurer may not deal directly with a claimant represented by an attorney without the attorney’s consent; See also the American Bar Association’s Model Rules of Professional Conduct, Rule 4.2, and the New York State Bar Association’s Code of Professional Responsibility, Disciplinary Rule 7-104, which assert that a lawyer may not communicate directly with someone known to be directly represented by counsel unless the lawyer obtains the counsel’s prior consent.