FLORIDA BAR ETHICS OPINION
September 13, 2002
Advisory ethics opinions are not binding.
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.