Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
November 52002
Mr. Richard F. Reynolds Opinion No. JC-0572
Executive Director
Texas Workers’ Compensation Commission Re: Whether a Workers’ Compensation
Southfield Building, MS-4D Commission rule requiring that written
4000 South IH-35 communications be sent to both a claimant and
Austin, Texas 78704-7491 the claimant’s attorney creates an exception to
Rule 4.02(a) of the Texas Disciplinary Rules
of Professional Conduct, which prohibits an
attorney from communicating with a person
who is represented by counsel (RQ-05 5 1-JC)
Dear Mr. Reynolds:
You ask whether a Workers’ Compensation Commission (the “Commission”) rule requiring
that written communications be sent to both a claimant and the claimant’s attorney creates an
exception to Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct, which prohibits
an attorney from communicating with a person who is represented by counsel. We conclude that the
Commission rule creates an exception to the Rule 4.02(a) prohibition.
Rule 4.02(a) of the Texas Disciplinary Rules of Professional Conduct prohibits an attorney
from communicating with a person who is represented by counsel as follows:
In representing a client, a lawyer shall not communicate or
cause or encourage another to communicate about the subject of the
representation with a person, organization or entity of government the
lawyer knows to be represented by another lawyer regarding that
subject, unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.
TEX. DISCIPLINARYR. PROF’L CONDUCT4.02(a), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit.
G app. A (Vernon 1998) (TEx. STATEBARR. art. X, 8 9); see also id. cmt. 2 (“Paragraph (a) of this
Rule is directed at efforts to circumvent the lawyer-client relationship existing between other
persons, organizations or entities of government and their respective counsel.“). This rule, adopted
from the Model Rules of Professional Conduct, is “meant ‘to prevent lawyers from taking advantage
of uncounselled lay persons and to preserve the integrity of the lawyer-client relationship.“’
Graham v. United States, 96 F.3d 446, 449 (9th Cir. 1996) (quoting the Model Rules of Prof.
Conduct R. 4.2 cmt. (1992)).
Mr. Richard F. Reynolds - Page 2 (JC-0572)
You ask about the interplay of this attorney disciplinary rule and a procedural rule
promulgated by the Commission. As a general matter, the Commission is charged with adjudicating
workers’ claims for compensation for work-related injuries and is authorized to adopt rules.
See TEX. LAB. CODE ANN. ch. 410 (Vernon 1996 & Supp. 2002) (adjudication of disputes);
id. 88 402.061 (Vernon 1996) (“The commission shall adopt rules as necessary for the
implementation and enforcement of this subtitle.“), 410.157 (“The commission shall adopt rules
governing procedures under which contested case hearings are conducted.“). The Commission has
adopted two rules dealing with communications between parties. Rule 102.4 provides “general rules
for non-commission communications” and rule 102.5 provides “general rules for written
communications to and from the commission.” See 28 TEX. ADMIN. CODE $5 102.4,102.5 (2002).
Rule 102.4(a) provides that all written communications to a claimant shall be sent to the most recent
address or facsimile number supplied by the claimant. See id. 8 102.4(a). Rule 102.4(b), the rule
at issue in your request, provides as follows:
After an insurance carrier, employer, or health care provider
is notified in writing that a claimant is represented by an attorney or
other representative, copies of all written communications related to
the claim to the claimant shall thereafter be mailed or delivered to the
representative as well as the claimant, unless the claimant requests
delivery to the representative only.
Id. fj 102.4(b); see also id. 8 102.5(a) (“After the Commission is notified in writing that a claimant
is represented by an attorney or other representative, all copies of written communications to the
claimant shall thereafter be sent to the representative as well as the claimant, unless the claimant
requests delivery to the representative only. However, copies of settlements, notices setting benefit
review conferences and hearings, and orders of the Commission shall always be sent to the claimant
regardless of representation status.“).
The Commission adopted the rule 102.4(b) requirement that claimants receive copies of
communications to ensure that all participants are informed regarding the status of a claim.
See 24 Tex. Reg. 6488’6489 (1999) (T ex. Workers’ Compensation Comm’n) (“Amendments to
subsection (b) require employers and health care providers as well as carriers, when notified by the
claimant that the claimant has a representative, to mail or deliver copies of all written
communications associated with the claim to the claimant as well as to the claimant’s representative.
The previous subsection only required carriers to include the claimant’s representative in all written
communications. These changes will help ensure that all participants are informed regarding the
status of a claim.“); see also id. at 6499-500 (codified as an amendment to 28 TEX. ADMIN. CODE
8 102.4(b)) (Tex. Workers’ Compensation Cornm’n).
You inform us that an attorney for an insurance carrier has indicated that this rule, which
requires an insurance carrier, employer, or health care provider to send copies of all written
communications related to a claim to both the claimant and the claimant’s attorney, “is placing
attorneys who represent carriers in a difficult and unfair position” because compliance with the
Mr. Richard F. Reynolds - Page 3 (JC-0572)
Commission rule violates Rule 4.02 of the Texas Disciplinary Rules of Professional Conduct.’ The
Commission takes the position that its rule provides an exception to Rule 4.02(a). We agree.
We conclude that the Commission rule is “law” authorizing an attorney to send a written
communication to a person who is represented by counsel and that it provides an exception to Rule
4.02(a). Again, Rule 4.02(a) bars communications with clients “unless the lawyer has the consent
of the other lawyer or is authorized by law to do so.” TEX. DISCIPLINARY R. PROF'L CONDUCT
4.02(a) (emphasis added). In Lee v. Fenwick, 907 S.W.2d 88 (Tex. App.-Eastland 1995, writ
denied), appellees argued that notice to appellants’ attorney satisfied a statutory notice requirement
that “defendant receive written notice” of a claim and that prejudgment interest began to accrue on
the date the attorney received notice. Appellees argued that Rule 4.02 precluded their attorney from
providing notice directly to the defendants. See id. at 90. The court disagreed, concluding that the
statutory notice provision required notice to the defendant and thus provided an exception to Rule
4.02: “Since [the statute] requires written notice to the defendant, an attorney would not violate
Disciplinary Rule 4.02 by sending the statutory notice.” Id.
A procedural notice or service requirement imposed by an administrative rule rather than a
statute may also provide an exception to Rule 4.02(a). Cf: ABA Con-m. On Ethics and Prof 1
Responsibility, Formal Op. 396 (1995) (“The ‘authorized by law’ exception to the Rule is also
satisfied by a constitutional provision, statute or court rule, having the force and effect of law, that
expressly allows a particular communication to occur in the absence of counsel - such as court rules
providing for service of process on a party.“). In Texas, valid rules and regulations promulgated by
an administrative agency acting within its statutory authority have the force and effect of legislation.
See Lewis v. Jacksonville Bldg. & Loan Ass ‘n, 540 S.W.2d 307, 310 (Tex. 1976). We have no
reason to believe that the Commission’s rule of procedure exceeds its statutory authority or was not
properly adopted. See B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex. 1978)
(“Generally, administrative regulations only have the full force and effect of law when: (1) a statute
exists which specifically authorizes the issuance of rules and regulations by the agency; (2) the rule
or regulation adopted is within the authority of the agency; and (3) the rule or regulation is adopted
according to the procedure prescribed by statute.“) (holding that federal agency safety manual did
not have statutory status because it did not meet these criteria); TEX. LAB. CODE ANN. $3 402.061
(Vernon 1996) (“The commission shall adopt rules as necessary for the implementation and
enforcement of this subtitle.“), 4 10.157 (“The commission shall adopt rules governing procedures
under which contested case hearings are conducted.“); see also United States ex rel. OKeefe v.
McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998) (concluding that United States
Department of Justice rule purporting to authorize United States attorneys to contact persons
represented by counsel was not authorized by statute and concluding that contacts made pursuant to
rule were not “authorized by law” for purposes of state disciplinary rule). Furthermore, this
procedural rule, which serves to keep claimants fully informed of the status of their claims through
the receipt of written communications that must also be sent to their attorneys, see 24 Tex. Reg.
6488’6489 (1999) ( ex pl aining purpose of amendment to rule), does not appear to provide attorneys
‘Letter from Craig H. Smith, Director, Legal Services, Texas Workers’ Compensation Comm’n, to Honorable
John Comyn, Texas Attorney General at 1 (May 15,2002) (on file with Opinion Committee).
Mr. Richard F. Reynolds - Page 4 (JC-0572)
with an opportunity to take advantage of claimants or to undermine claimants’ relationships with
their attorneys. Accordingly, we conclude that the Commission rule requiring that written
communications be sent to both a claimant and the claimant’s attorney authorizes an insurance
carrier’s attorney to send copies of written communications related to the claim to a claimant who
is represented by counsel and creates an exception to Rule 4.02(a) of the Texas Disciplinary Rules
of Professional Conduct.
Finally, we note that Rule 4.02(a) bars communications with clients “unless the lawyer has
the consent of the other lawyer or is authorized by law to do so.” TEX. DISCIPLINARYR. PROF’L
CONDUCT 4.02(a) (emphasis added). The comment to the rule states that “[clonsent may be implied
as well as express, as, for example, where the communication occurs in the form of a private
placement memorandum or similar document that obviously is intended for multiple recipients
and that normally is furnished directly to persons, even if known to be represented by counsel.” Id.
cmt. 2. The Commission rule provides all parties with notice that written communications will be
sent to both the claimant and the claimant’s attorney, unless the claimant opts to have
communications sent only to his or her attorney. See 28 TEX. ADMIN. CODE 9 102.4(b) (2002).
Given this notice, we believe that an insurance carrier’s attorney who sends copies of written
communications related to a claim to a claimant who is represented by counsel and who has not
opted to have the communications sent only to counsel has implied consent of the claimant’s counsel
to do so.
Mr. Richard F. Reynolds - Page 5 (JC-0572)
SUMMARY
A Texas Workers’ Compensation Commission rule requiring
that written communications related to a claim be sent to both a
claimant and the claimant’s attorney, see 28 TEX. ADMIN. CODE
9 102.4(b) (2002)’ creates an exception to Rule 4.02(a) of the Texas
Disciplinary Rules of Professional Conduct, which prohibits an
attorney from communicating with a person who is represented by
counsel, see TEX. DISCIPLINARYR. PROF’L CONDUCT 4.02(a)
(precluding communications with a person represented by counsel
unless lawyer “is authorized by law to do so”).
N CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee