Opinion 94-23
(December 1994)

You asked for an opinion on several issues arising from your representation of a claimant in a worker's compensation case. While your request for an opinion on possible rule violations by your opposing counsel is beyond the scope of this Committee's work, the committee properly may opine on matters involving your payment of a referral fee and your proposed communication with your client's employer.

The Committee's opinion is based on these facts: Your client, the claimant, was injured while working as an investigator for the referring law firm. That law firm, which is also the insured in the worker's compensation matter, initially represented the claimant in his worker's compensation case against the insurance carrier. The law firm referred the case to you when it discovered that this representation of the claimant in a case in which it was technically an adverse party constituted a conflict of interest. Counsel for the insurance carrier has made off the record statements to the administrative law judge indicating that she represents only the insurance carrier, not the insured law firm employer. No other lawyer represents the insured law firm in this litigation. You wish to contact persons at the insured law firm to testify on behalf of the claimant. Although you now wonder if you could contact these people directly without running afoul of the ethical rules, you have already written to insurance carrier counsel asking for her written permission to directly contact persons working at the insured firm. Insurance carrier counsel has not responded to this request.

In the usual worker's compensation case where insurance carrier counsel also represents the employer, you would be precluded from direct communication with the insured employer unless you first obtained the consent of counsel. See Rule 4.2, Communication with Person Represented by Counsel. Here, however, counsel for the carrier has apparently taken the position, at least in her off-the-record comments, that she represents only the carrier, not the insured. The Committee is concerned that the representation limitations on which you rely are supported only by counsel's off-the-record statements to the administrative law judge. For this reason, as well as the fact that your prior letter to insurance carrier counsel suggests that you will await counsel's written consent before contacting persons from the insured law firm, the Committee believes that you should take an additional step before you undertake direct communication with the insured. Accordingly, the Committee recommends that you send opposing counsel a negative option letter advising counsel of your intent to communicate directly with the insured unless counsel notifies you of her objection in writing within a stated period of time. Should you receive no response, since know one else represents the insured law firm, the law firm may then be contacted as you would an unrepresented party. Consistent with the rules of professional conduct, an attorney instituting such conduct with an unrepresented party must not mislead the unrepresented party or misstate his interest. See Rule 4.3, Dealing with Unrepresented Person and Communicating with One of Adverse Interest.

In considering whether you may pay a referral fee to the law firm that referred this matter to you, the Committee has concluded that you may not do so. Consistent with prior decisions of this Committee, legal fees may not be divided with a firm that is under a legal or ethical impediment to representing the client. Here, the referring law firm was the claimant's employer and a technically adverse party in the worker's compensation litigation. Accordingly, it was in a conflict of interest situation and could not continue to represent the claimant. See Rule 1.7(b) (a lawyer shall not undertake representation that is limited by the lawyer's own interests). Since the referring firm withdrew from the representation based on this conflict, you may not pay a referral fee.

It is the mandate of the Professional Guidance Committee to provide advice upon request to lawyers seeking ethical guidance in the conduct of their own practices. While the committee cannot comment on complaints about the conduct of opposing counsel, the rules of professional conduct impose on all lawyers the obligation to report to the appropriate disciplinary authorities violations that raise a substantial question as to another lawyer's honesty, trustworthiness, or fitness to practice law. Rules of Professional Conduct, Rule 8.3(a) & (c).
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.