LEO Num | Topics | Summary | Date |
ABA-450
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| "When a lawyer represents multiple clients in the same or related matters, the obligation of confidentiality to each sometimes may conflict with the obligation of disclosure to each." Lawyers hired by an insurance company to represent both an insured employer and an employee must explain at the beginning of the representation whom the lawyer represents (which is based on state law). If there is a chance of adversity in this type of joint representation, "[a]n advance waiver from the carrier or employer, permitting the lawyer to continue representing the insured in the event conflicts arise, may well be appropriate." The lawyer faces a dilemma if he learns confidential information from one client that will cause that client damage if disclosed to the other client. "Absent an express agreement among the lawyer and the clients that satisfies the 'informed consent' standard of Rule 1.6(a), the Committee believes that whenever information related to the representation of a client may be harmful to the client in the hands of another client or a third person, the lawyer is prohibited by Rule 1.6 from revealing that information to any person, including the other client and the third person, unless disclosure is permitted under an exception to Rule 1.6." It is "highly doubtful" that consents provided by the jointly represented clients "before the lawyer understands the facts giving rise to the conflict" will satisfy the "informed consent" standards. Absent a valid consent, a lawyer must withdraw from representing the other client if the lawyer cannot make the disclosure to the client, and cannot fulfill his other obligations without such a disclosure. In the case of a lawyer hired by an insurance company to represent an insured, "[t]he lawyer may not reveal the information gained by the lawyer from either the employee or the witness, or use it to the benefit of the insurance company, when the revelation might result in denial of insurance protection to the employee." "Lawyers routinely have multiple clients with unrelated matters, and may not share the information of one client with other clients. The difference when the lawyer represents multiple clients on the same or a related matter is that the lawyer has a duty to communicate with all of the clients about that matter. Each client is entitled to the benefit of Rule 1.6 with respect to information relating to that client's representation, and a lawyer whose representation of multiple clients is not prohibited by Rule 1.7 is bound to protect the information of each client from disclosure, whether to other clients or otherwise." The insured's normal duty to cooperate with the insurance company does not undermine the lawyer's duty to protect the insured's information from disclosure to the insurance company, if disclosure would harm the insured. A lawyer hired by an insurance company to represent both an employer and an employee must obtain the employee's consent to disclose information that might allow the employer to seek to avoid liability for the employee's actions (the employee's failure to consent to the disclosure would bar the lawyer from seeking the employer's consent to forego such a defense). A lawyer facing this dilemma may have to withdraw from representing all of the clients, but "[t]he lawyer may be able to continue representing the insured, the 'primary' client in most jurisdictions, depending in part on whether that topic has been clarified in advance." | 4/9/2008 |
1661
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| A City Attorney may represent a police officer in a case in which both compensatory damages and punitive damages are sought, even though the city would not be responsible for the payment of any punitive award. The city and the officer agree on the basic underlying facts and believe that they will advance consistent defenses. Still, the City Attorney must advise the officer in writing that the officer has the right to seek independent counsel to defend the punitive damage claim, and that the lawyer "would be required to withdraw from representation if discovery reveals the appropriateness of antagonistic defenses or that the officer acted contrary to City policy or outside the scope of his employment." The Bar analogized the situation to a lawyer hired by an insurance company representing an insured -- "although paid by the insurer, the lawyer must represent the insured with undivided loyalty;" may not disclose or use confidences or secrets "which may create a policy defense for the insurance company;" and must withdraw if the insured and insurer disagree about whether to settle the case. | 2/28/1996 |
ABA-403
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| A law firm hired by an insurance carrier to represent an insured may also represent the carrier, but regardless of the contractual arrangement will be bound by the rule of professional conduct and not the insurance contract. If the insurance carrier may dictate litigation strategy and settlement, the lawyer must disclose this limitation to the insured and may not settle a case over the insured's objection without giving the insured a chance to take over the case at the insured's own expense. | 8/2/1996 |
1410
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| A lawyer filing a products liability case may also represent the worker's compensation insurance carrier (which is potentially adverse to the plaintiff) if both clients consent. | 4/19/1991 |
1071
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| A lawyer for a worker's compensation insurer may propose to the lawyer for the worker that the insurer would not intervene in the action the worker had filed against the defendant if the worker agreed to pay the workers' compensation lien without taking any attorneys' fees. | 5/31/1988 |
1629
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| A lawyer has worked as an associate in a medical malpractice defense firm and as a non-lawyer claims consultant for an insurance company (assigning malpractice cases to defense lawyers). The lawyer has now joined a plaintiffs firm. The lawyer may not pursue malpractice cases against any doctor on behalf of whom the lawyer had been involved as a lawyer in previous medical malpractice cases.The matters would be "substantially related" because "both representations involve the same doctor whose professional competence is at issue in both suits," and "possession of confidential information may be imputed" to the lawyer because of "his having earlier participated in the defense of the doctor in a previous malpractice action." If the lawyer was "involved" in the defense of any co-defendants in the earlier malpractice actions, the lawyer would likewise be precluded from representing plaintiffs adverse to them. [The Bar did not explain what would entail such "involvement."]The lawyer may represent plaintiffs adverse to a doctor represented by the lawyer's former firm if the lawyer "did not work on the doctor's defense and did not receive any confidential information from the doctor." Because the lawyer did not establish an attorney-client relationship with the insurance company's insureds while administering claims, the lawyer may be adverse to doctors "whose claim was managed and administered" by the lawyer while employed by the insurance company (the Bar indicated that "the doctors' claim information would not constitute a confidence or secret" under the Code) [Because lawyers are bound by the Code even if they are not acting as lawyers, and because such claims information might be highly sensitive, this seems like too narrow a view.] | 2/7/1995 |
0294
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| A lawyer hired by a plaintiff's insurer to file a grounds of defense and interrogatories on behalf of an uninsured defendant may not (after the case is settled) then file a subrogation action on behalf of the insurer against the defendant, even if the lawyer never interviewed the defendant. | 2/23/1978 |
1723
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| A lawyer hired by an insurance carrier to represent an insured "must represent the insured with undivided loyalty," and may not: (1) agree to an insurance carrier's restrictions on the lawyer's representation of the insured "absent full disclosure and consent of the client at the outset of the representation and absent a determination that the client's rights will not be materially impaired by restrictions" such as limitations on discovery and the use of experts and other third party vendors, and requirements for "pre-approval for time spent on research, travel and the taking and summarizing of depositions"; (2) submit detailed information to a firm selected by the insurance carrier to audit billing statements, without the insured client's consent after "full and adequate disclosure"; or (3) recommend that the client consent to such disclosure to the auditor if it would prejudice the client. | 11/23/1998 |
1057
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| A lawyer may charge a fixed percentage overhead fee for miscellaneous expenses in most representations, although such an arrangement would be improper in contingent fee matters (in which the client must be responsible for the actual costs incurred). (3/22/88)A law firm who occasionally represents an insurance company may represent a company whose interests are adverse to the insurance company's as long as the matters are not substantially related. However, consent would be required if the firm routinely handled the insurance company's matters "from time to time, whether on retainer or not, [or] whether presently engaged or not." (Here, no consent was required because the representation of the carrier was not "ongoing").The Bar contrasted this time-to-time representation (in which consent would be required) from what it described as a representation which was "not ongoing, but was based on the completion of a specific project which has not been completed" in which case consent would not be required. [The "not" is probably a typographical error -- the Bar probably meant "now been completed."] | 3/23/1988 |
0223
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| A lawyer may not defend two insureds in a personal injury case while representing the insurer in a declaratory judgment action against them. | 4/18/1973 |
0955
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| A lawyer may recommend a "referral system" to insurance carriers, may notify carriers that the lawyer limits the lawyer's practice to certain areas and may send carriers a resume. | 8/21/1987 |
ABA-435
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| A lawyer may represent a client against an adversary insured by an insurance company that the lawyer represents in unrelated matters, unless the insurance company becomes a formal party because the lawyer's litigation client and the insurance company are economically rather than legally adverse. The lawyer might be prohibited from taking discovery of the insurance company client, depending upon the adverseness involved. The lawyer might be unable to represent the litigation client if the lawyer has protected information from the insurance company client that "would materially help the plaintiff in his claims against the insured defendant." | 12/8/2004 |
0213
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| A lawyer may represent an insured in a personal injury action and the insurer on a subrogation claim against the same defendant as long as both the insurer and insured consent. | 8/14/1970 |
1223
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| A lawyer may represent both the driver and passengers in an accident in pursuing a product liability case as long as all clients consent after full disclosure. The lawyer should re-evaluate the representation if one of his clients indicates a desire to pursue a claim against another client. The lawyer may also represent the insurance carrier in a subrogation claim against the defendant as long as the clients consent after full disclosure. | 4/19/1989 |
0360
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| A lawyer may represent the insured in a personal injury case and the insurance carrier in the subrogation case against the tortfeasor as long as the insured and the insurer consent. | 3/10/1980 |
1536
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| A lawyer represented an insurance company's insureds and also represented the company in coverage issues. The Bar affirmed that the insured is the client of an outside lawyer selected by the carrier to represent the insured (relying on LEO 598). Once the lawyer leaves the firm, the lawyer may represent plaintiffs against other insureds (because "there was no attorney-client relationship" between the lawyer and the insurance company) as long as the new representations are not the same or substantially related to the specific matters on which the lawyer represented the company's insureds at the lawyer's old firm. [The Bar's conclusion that there was "no attorney-client relationship" between the lawyer and the insurance company seems inconsistent with its earlier statement that the lawyer handled "coverage issues" for the insurance company.] The lawyer's "familiarity with the general operation of [the insurance company] does not constitute a confidence or secret." Although the lawyer's spouse is an insurance company employee with access to claim files, the lawyer will not be disqualified as long as the lawyer has not acquired any confidential information from the spouse. | 6/22/1993 |
1789
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| A lawyer representing a client (seeking Social Security disability benefits for "disabling mental impairments affecting both personality and judgment") who has obtained a report on the client prepared by the client's treating psychologist at the request of and at the expense of the client's long term disability insurance carrier: is bound by Rule 1.4's duty to communicate material facts to the client, if there is an existing attorney client relationship; must comply with Rule 1.16 if the attorney client relationship has ended; may not follow the carrier's direction about the report, if following the direction would violate the lawyer's ethical duties to the client; may be guided by Rule 1.14 if the client is suffering from an impairment (for instance, "while an attorney may never withhold a medical report from a client merely at the request of some other party, in rare instances, an attorney may appropriately consider whether the client is able to act in his own interest with respect to requesting the information"); may be governed by other substantive law covering medical records. | 2/20/2004 |
1377
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| A lawyer representing a trucking company and driver in a wrongful death case learns that the driver has had a number of earlier tickets, and there is a dispute about whether the driver reported the tickets to the trucking company. The lawyer has withdrawn from representing the driver but wants to continue representing the company. The lawyer could do so only with the driver's consent, because the lawyer had earlier represented the driver. | 9/13/1990 |
1858
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| A lawyer representing an insurance company cannot "draft, propose or participate in," and a personal injury plaintiff's lawyer cannot agree to, a settlement provision requiring the plaintiff's lawyer "to agree to indemnify the insurer against liens in the event that they are not paid from the settlement proceeds or the plaintiff." Citing several other states' ethics opinions, the Bar held that such a provision amounts to "improper financial assistance to the client," and creates a conflict of interest between the plaintiff and the plaintiff's lawyer (who "cannot reasonably be expected to provide an objective evaluation" of the settlement because it involves the lawyer's possible personal liability). Under the trust account rules, the plaintiff's lawyer must protect any third party's claim on the settlement proceeds when the lawyer possesses the proceeds. However, the lawyer does not have any duty, and cannot assume any duty, to pay the client's debts if the lawyer disburses the settlement proceeds and the client fails to pay those debts. | 7/27/2011 |
0616
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| A lawyer representing several insureds may not arrange an aggregate settlement to which one of the clients objects; the lawyer must withdraw from the representation if a conflict develops between insured and insurer. | 11/13/1984 |
1592
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| A lawyer retained by an uninsured motorist insurance carrier but providing informal advice to the defendant motorist has an attorney-client relationship with the motorist. The lawyer may provide such advice without a conflict because the carrier and the motorist share an interest in defeating the plaintiff's claim (although adversity may later develop if the carrier asserts a subrogation claim against the motorist). The lawyer may not permit the motorist to tell the Court that the motorist is appearing pro se, and must comply with any court rules requiring disclosure of informal assistance by a lawyer. [overruled to the extent it is inconsistent with LEO 1874 (7/28/14), which explained that the ethics rules do not prohibit undisclosed assistance to a pro se litigant, but some courts forbid it] | 9/14/1994 |
0873
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| A lawyer who "from time to time" represents the same insureds may be adverse to one of the insureds if all parties consent (a lawyer representing an insured owes his "sole allegiance" to the insured). Although the Bar has "suggested" that "it may be improper" for a lawyer to represent a client while at the same time suing it, the Bar approved such an arrangement as long as: the clients consent after full disclosure; the matters are not "substantially related"; the lawyer has "learned nothing in one capacity which would help you in another"; and the lawyer's "independent ability to represent your client" is in "no way affected." | 2/2/1987 |
0493
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| A lawyer who "usually" represents those insured by the defendant's insurance company may represent the plaintiff in a personal injury action against the defendant only if both parties consent. (The request for an opinion reveals that the lawyer's father, with whom the lawyer shared an office, was currently representing an insured of the insurance company on an unrelated matter). | 9/20/1982 |
1169
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| A plaintiff's lawyer may not communicate with an insurance adjuster in an effort to settle a case in which the defendant is represented by a lawyer, unless that lawyer consents. | 10/20/1988 |
1289
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| A settlement between an insurance company and a personal injury plaintiff included an amount to pay a bill that the plaintiff's lawyer later learned was accidentally issued by a hospital and which the client did not really owe. The lawyer asked if there was an obligation to advise the insurance company of the mistake. Because it was a mistake and not an attempt by the plaintiff to defraud the insurance company, the lawyer must keep the mistake secret. However, the lawyer must concede the mistake if the insurance company later discovers it. | 10/23/1989 |
ABA-421
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| Although the ABA takes no position on whether an attorney-client relationship exists between an insured and lawyers hired by an insurance company to represent the insured, the lawyers: may not allow their professional judgment to be affected by litigation guidelines imposed by the insurance carrier (and might even have to withdraw under extreme circumstances); may not disclose the insured’s confidential information to a third-party auditor picked by the insurance company without the insured’s informed consent (because of ethics duties and the risk of waiver); may in certain circumstances be barred from revealing confidential information about the insured to the insurance carrier (such as information that would jeopardize coverage). | 2/16/2001 |
0226
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| An in-house lawyer for an insurance company may maintain a separate private practice to represent company employees at their own expense. | 6/12/1973 |
0598
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| An in-house lawyer for an insurance company may represent an insured, but must remember that the insured is the client. Among other things, the insured's lawyer may not reveal information acquired from the insured that would allow the carrier to deny coverage. [Approved by the Supreme Court 3/8/85, effective 6/1/85.] | 6/1/1985 |
0877
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| An in-house lawyer may not obtain an indemnification agreement. [Rule 1.8(h) permits such indemnity agreements if the corporation is separately represented.] | 4/1/1987 |
1344
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| An insurance carrier's lawyer may prepare settlement documents to be executed by a decedent's personal representative, but must include with the papers a description of the nature of the lawyer's work and the fact that the lawyer had advised the unrepresented personal representative to seek independent counsel. [This LEO overrules inconsistent portions of LEO 1019.] | 5/31/1990 |
0191
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| An insurance carrier's lawyer may represent a client on a subrogation claim and the insured seeking to recover the deductible as long as the insured consents. | 1/23/1963 |
1310
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| An insurance company hired a lawyer to represent an employer sued for an accident involving an employee and a phantom driver. The court found the employee negligent. Two years later, the employee sued the phantom driver. The insurer hired the same lawyer to defend the uninsured motorist case. Because the lawyer did not formerly represent the employee (who was merely a witness) and did not gain any confidential information from the witness, the lawyer could defend the case. | 11/16/1990 |
1490
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| An insurance company's lawyer learned that a personal injury plaintiff had fraudulently obtained a driver's license after several DUI convictions, and used an assumed name in a court appearance. The lawyer offered to settle the personal injury case for a nuisance amount in return for not revealing these facts. Because the plaintiff had admitted this fraud upon the tribunal, the lawyer may not enter into what would be a "potentially illegal agreement," but instead must "promptly reveal the fraud to the tribunal." | 10/19/1992 |
1019
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| An insurance company's lawyer may not prepare pleadings or other legal documents for unrepresented parties interested in settling personal injury claims. [This practice is probably acceptable as long as the lawyer does not provide any substantive advice or overreach.] | 1/11/1988 |
0781
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| An insurance company's lawyer may tender offers to co-plaintiffs conditioned on both accepting the offer. The co-plaintiffs' lawyer must be careful to abide by DR 5-107. | 4/22/1986 |
0698
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| As long as both clients consent, a lawyer may represent a defendant driver in a declaratory judgment action to determine insurance coverage and also be adverse to the driver in personal injury litigation. | 5/10/1985 |
0634
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| As long as both the insurer and the former client-insured consent, a lawyer may represent the insurer in a subrogation claim even though the former client (the insured) has filed an ethics complaint against the lawyer on a related matter. | 12/19/1984 |
1142
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| As long as the former client consents, a lawyer for a non-suited defendant in an automobile accident may represent the non-suited defendant's insurance carrier. | 10/26/1988 |
1752
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| Even if a lawyer representing the company owner and a driver in a personal injury case (with limited insurance coverage) refuses to acknowledge that the lawyer has advised the clients of their right to separate counsel, the plaintiff’s lawyer may not give such advice to the defendants -- either by mail or in a defendant’s deposition in the presence of the defendant’s lawyer (absent advance consent of the defendants’ lawyer). | 3/29/2001 |
1150
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| Even if both parties consent, a lawyer may not represent a plaintiff in an action against a hospital medical group when the lawyer's partner was retained by an insurance carrier to represent the medical group in an unrelated matter; the law firm must withdraw from both representations. [The Bar's conclusion that consent would not cure this conflict might be different under Rule 1.7(a)'s "reasonably believes" subjective standard rather than the old Code's "obvious" standard.] | 10/26/1988 |
1476
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| In an employment case, a lawyer may argue in the Circuit Court that the plaintiff's exclusive remedy was under the Worker's Compensation Act and at the same time argue to the Commission that the matter should be addressed by the Circuit Court. The lawyer's duty to diligently represent the client outweighed any "credibility problem" the lawyer's inconsistent positions might create, as long as "the validity of the rule [of law] is subject to legitimate dispute." The Bar analogized the inconsistent arguments to the filing of pleadings in the alternative. [This LEO was effectively overruled by Va. Code § 65.2-706.1 and Va. Code § 8.01-420.5.] | 8/24/1992 |
ABA-430
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| Lawyers employed as staff employees of insurance companies may represent both the company and the insured in "full coverage cases" -- in which the insured's monetary exposure is within the coverage limits, and there is no dispute about coverage. The lawyers must keep in mind "the importance of undivided fidelity to the insured-client." The issue of separate attorney-client relationships with the insured and the company (or both) is a question of state law, but some states follow a "dual client" approach while others recognize that the lawyer represents only the insured. Most states allow staff counsel to represent insureds, but some states prohibit such representations as the unauthorized practice of law. Insurance companies' staff lawyers representing insureds must disclose to their insureds clients -- "at the earliest opportunity practicable" their "employment status and affiliation with the insurance company." Staff lawyers for an insurance company may use a traditional law firm name or a trade name, as long as they make the required disclosure to their insureds-clients. | 7/9/2003 |
1392
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| Plaintiff or defense lawyers may serve on Medical Malpractice Review Panels as long as they are not representing the claimant or the defendant, or are otherwise involved in actual facts before the panel. | 1/14/1991 |
0687
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| Plaintiff's lawyer may not directly contact defendant's insurer to open settlement negotiations without obtaining the consent of the lawyer for the defendant and the insurer. | 5/29/1985 |
1863
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| Virginia case law and ethics opinions "suggest" that a lawyer hired by an insurance company to represent its insured represents only the insured. On the other hand, absent a conflict of interest, the same lawyer may represent both the insurance company and the insured. Given this situation, a plaintiff's lawyer may communicate ex parte with the insurance adjuster or other insurance company executive without the insured's defense lawyer's consent -- "unless the plaintiff's lawyer is aware that the defendant/insured's lawyer also represents the insurer [overruling LEOs 550, 687, 1169 and 1524 to the extent that it implies otherwise]." [overruled in LEO 1863 (9/26/12), which indicated that plaintiff's lawyer may speak ex parte with an insurance adjuster or other insurance company executive unless the plaintiff's lawyer is aware that the insured's lawyer also represents the insurance company] | 9/26/2012 |