The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 71-3
April 5, 1971

The attorney for an injured plaintiff, who has been negotiating unsuccessfully with a potential defendant's insurance company, may not contact the insured directly before a judgment is obtained to request assignment of the insured's right of action for bad faith.

CPR: EC 7-18; DR 7-104(A)(2)
Opinion: 59-27
Case: Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla. 4th DCA 1969)

Chairman Massey stated the opinion of the committee:

An inquiring attorney represents an injured client in negligence matter. Suit has not been filed; however, the attorney is negotiating with the adjuster for the insurance company which has coverage on the third party who may be sued. The attorney believes the insurance company is dragging its heels and desires to write the third-party insured prior to filing suit, asking for an assignment of any right of action against the insurance company because of bad faith negotiation and to contact his personal attorney in reference thereto. Reference is made to Selfridge v. Allstate Insurance Company, 219 So.2d 127 (4th DCA Fla. 1969). The specific question is the time and manner in which contact may be made with the insured with reference to an assignment.

It would be most improper for the inquirer to contact the insured directly in the manner suggested prior to securing a judgment in a court of competent jurisdiction. See EC 7-18 and DR 7-104(A)(2). It is proper, however, for an attorney for a claimant who is unable to settle a claim with the opposing party's insurance adjuster to write the opposite party giving notice of intent to file suit and advising the third party to retain counsel. See Florida Opinion 59-27.

After judgment has been obtained, an approach may properly be made through the personal attorney of the insured third party if such third party has an attorney different from the attorney representing him through the insurance carrier. Assuming the insured third party has no personal attorney, the Committee then concludes it would be proper for the judgment-creditor to request in writing the assignment, provided a copy of the request is furnished to the attorney employed by the insurance carrier. It is the opinion of the Committee that the insurance carrier's attorney would obviously be disqualified to impartially advise the insured third party with respect to the assignment.

Assuming the inquirer could obtain an assignment prior to judgment, he would then be representing conflicting interests in that he would be making demands upon the insurance carrier in behalf of his injured client and also in behalf of the proposed defendant third party whose interest is diametrically opposed to the former. Therefore, in no event should the proposed type of contact be made, nor should the assignment be accepted, prior to judgment. The issue of whether Selfridge v. Allstate Insurance Company, supra, authorizes or recognizes the validity of an assignment of a cause of action for bad faith prior to final judgment is a question of law not within the jurisdiction of this Committee.

[Revised: 08-24-2011]