The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
September 13, 2002
September 13, 2002
An attorney hired by an insurance company to defend an insured in an employment discrimination claim must provide a copy of the insured statement of client’s rights only if there is an element of personal injury involved in the claim. The attorney should make similar disclosures to the insured even if there is not an element of personal injury, but may choose the method of disclosure.
A member of The Florida Bar has inquired whether Rule 4-1.8(j), adopted by the Supreme Court of Florida on April 25, 2002, requires an attorney to provide a client with a copy of the Statement of Insured Client’s Rights when the attorney is hired by an insurance company to defend an insured in an employment discrimination claim pursuant to a policy for employment practice liability insurance.
Rule 4-1.8(j) provides as follows:
When a lawyer undertakes the defense of an insured other than a governmental entity, at the expense of an insurance company, in regard to an action or claim for personal injury or for property damages, or for death or loss of services resulting from personal injuries based upon tortious conduct, including product liability claims, the Statement of Insured Client’s Rights shall be provided to the insured at the commencement of the representation.
The answer to the inquiry depends on the nature of the discrimination claim that the lawyer is hired to defend. If the discrimination claim includes an element of personal injury, the lawyer must provide the insured client with a copy of the Statement of Insured Client’s Rights in accordance with the rule.
If there is no element of personal injury, the lawyer is not required to provide the insured client with a copy of the Statement of Insured Client’s Rights. The lawyer still has obligations to disclose to the client the nature of the attorney-client relationship and the client’s rights. As stated in the comment to Rule 4-1.8(j):
Establishment of the statement and the duty to provide it to an insured in tort cases involving personal injury or property damage should not be construed as lessening the duty of the lawyer to inform clients of their rights in other circumstances. When other types of insurance are involved, when there are other third-party payors of fees, or when multiple clients are represented, similar needs for fully informing clients exist, as recognized in rules 4-1.7(c) and 4-1.8(f).
Therefore, even if the rule does not require the lawyer to provide the Statement of Insured Client’s Rights, the lawyer should make similar disclosures to the client. The lawyer may choose how and in what form to make those disclosures.