LEO: Representing a Client Within the Bounds LE Op. 1071
Representing a Client Within the Bounds of the Law.
May 31, 1988
You advise that in August, 1986, "X" was involved in an automobile
accident with "Y". "Y" was charged with following too close and it is
believed that he is the negligent party in the action. On the date of the
collision "X" was employed and was on his employer's business at the time
of the accident. He was, therefore, entitled to receive workers'
compensation benefits for his personal injury. Company "A" is the workers'
compensation insurer for "X"'s employer. Company "A" accepted "X"'s claim
and began paying benefits. In October, 1987, Company "A" asserted
subrogation rights against "Y". "Y" acknowledged receipt of same by
signing a certified return. In October, 1987, Company "A" received no
contact from "Y" and referred the matter to you in January, 1988,
requesting that you take whatever action necessary to protect the amount
of Company "A"'s lien. You immediately forwarded a demand letter to "Y"
and received no response. You then generated a warrant in debt against "Y",
which was to leave your office at the end of March, 1988. A day before you
were to send the warrant in debt, you received a copy of a medical report
on "X" indicating that he had an attorney representing him on the personal
injury case. You immediately called Company "A", and they indicated that
this was the first notice that they had received that "X" was, in fact,
represented. On this same date, you called the attorney for "X" and
advised him of your involvement. You were informed by "X"'s attorney that
suit had been filed in December, 1987 against "Y". You explained that you
were ready to file an independent action to protect Company "A"'s workers'
compensation lien. You discussed with the attorney two strategic options
on how to proceed with your lien: (1) Company "A" could file an
independent action and have it consolidated with "X"'s attorney's case
wherein Company "A" would be an additional party plaintiff, or (2) the
attorney for "X" could agree to protect 100 percent of your workers'
compensation lien, without taking any attorney's fees for himself if you
do not intervene in the suit.
You state that your intentions were that from a trial-strategy standpoint
it does not present the best image for an insurance company to be a co-
plaintiff. You felt the issues would be muddied and the jury would be
confused as to the issues of insurance. You recommended option two to the
attorney and "X"'s attorney thought this suggestion was unethical and
threatening. You further state that you explained that you had a legal
right to file an independent action and intervene in the case to protect
your client's interests, and that you would be entitled to a reasonable
attorney's fee if recovery was made. You explained that you would forego
this action if he agreed to protect 100 percent of your client's claim,
not taking any attorney's fees for himself. You state that you explained
to the attorney for "X" that if you intervene you would clearly be
entitled to the fee, but if this was going to hurt his case or muddy the
waters for the jury, you would forego the action if he agreed to pay your
client what they would otherwise be entitled to.
It is the opinion of the Committee that you have probably not committed
any violations of the Code of Professional Responsibility. However, the
Committee urges that you look closely at §§ 65.1-41 through 65.1-43 of the
Va. Code, as well as at DR:7-102(A)(1) and (2) and DR:7-101 of the
Code of Professional Responsibility. If your intent was solely to protect
your client's interests, and your method of proceeding was known to your
client and it either directed or approved of same, then the Disciplinary
Rules would not have been violated.
Committee Opinion May 31, 1988