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