The Intersection of Rule 4.2 and the Spirit of the Act: A Heavenly Mansion or a Foul Sty?

I met the Bishop on the road
And much said he and I…
“Live in a heavenly mansion,
Not in some foul sty.” (said the Bishop)
“Fair and foul are near of kin,
And fair needs foul,” I cried…
“For nothing can be sole or whole
That has not been rent.”

Excerpted from “Crazy Jane Talks with the Bishop,” by W.B. Yeats

Several issues ago, Attorney Douglas Drayton penned an article in which he sternly reminded claimant’s counsel that Rule 4.2 of the Rules of Professional Conduct applies even to our parochial corner of the world.  The essence of the rule is that “thou shalt not communicate with a represented party,” and more specifically, with adjusters.  Like Yeats’ pious Bishop exhorting the lowly sinner to look heavenward,  Attorney Drayton warned that such communication, without consent from respondent’s counsel, constitutes a per se violation of the commandment.  As with many rules of professional responsibility, the academic pronouncement of the standard is as clear and shiny as a quarter flickering in the deep end of a pool, but just as elusive when you dive into the real world to wrap your hand around it. This article will examine some of the murkier scenarios that make a strict application of this rule difficult, and will attempt to harmonize the letter of Rule 4.2 with the spirit of our Workers’ Compensation Act using real world examples.

Our Act creates a statutory system of informal dispute resolution. The spirit of the Act fosters efforts to resolve issues without resort to the hearing process and the intervention of commissioners.  The Chairman’s office, in consultation with some of the more erudite members of our bar, promulgated “The Payor and Medical Provider Guidelines…” which reiterates this spirit in its Introduction section several times.  “The purpose of the Workers’ Compensation Act is to provide the timely and efficient delivery of monetary benefits and medical treatment to workers who have sustained injuries that are causally related to their employment…Communication, especially as it relates to medical treatment, is the key to ensuring the system’s goals are achieved…Timely decisions and effective communication provide an optimal outcome for all workers’ compensation stakeholders.”

For better or worse, our workers’ compensation is a world unto itself, separate and distinct from that of civil litigation.  As Justice Borden stated when he appeared before our section in 2009 at the CBA’s Annual Meeting, our practitioners enjoy a “shared understanding of the Act,” one which he conceded, frequently has caused members of the Supreme Court to scratch their heads at how our system works. Neither the Rules of Evidence nor the Practice Book applies, but somehow we manage nicely without either.  Hearsay admissions are commonly allowed, but go to the weight of the evidence, subject to due process concerns. Because there are only 16 commissioners in the state, two per district, the fact finder trying a formal has almost certainly presided over one or more informals, quite possibly including the pre-formal leading up to the trial, often meeting the claimants face-to-face, and presumably, forming opinions about the credibility of the claimant.  While there are so many potential conflicts in that scenario that you need a diagram to keep them straight, as a bar, we accept these inherent conflicts, because that’s how we roll in comp. Such conflicts do not exist in Superior Court because the number of judges allows for insulation between the judiciary, members of the bar, and most importantly, the parties.

As the Supreme Court has more elegantly stated, our bar is a specialized bar able to understand the nuances in the practice of workers’ compensation. “We recognize that workers’ compensation law is practiced to a large extent by a specialized bar—both claimants’ and insurers’.  Legislative changes are often made at the behest of the principal economic constituencies which are the principal participants in the system-labor unions and the business and insurance community.  Moreover, the commissioners, both at the hearing and the appellate levels, who adjudicate workers’ compensation disputes, have by virtue of their day-to-day experience, a large measure of legal expertise in the area.”  Enquist v. General Datacom, 218 Conn 19, 26-27, footnote 7.

Our rules are different. Respondents still pay for the cost of deposition transcripts if they have noticed the deposition, because they are better able to bear the cost. Discovery is voluntary, and such things as the production of videotape surveillance is largely at the discretion of respondent’s counsel, subject again to due process concerns.  We do not have a pleadings practice in which we have to while away our Monday mornings, and sometimes afternoons, making arcane arguments about how a defendant’s response to a Request to Admit is unresponsive, or why we should not have to make a perfectly clear complaint more specific. We gratefully embrace an informal arena in which we are unfettered by the mundane and methodical formalities of Superior Court, one in which our 15 minutes before the commissioner allows us to transact business in an efficient, effective manner calculated to insure that the best interests of both parties are being addressed promptly.

It is one thing to say the Rules of Evidence and the Practice Book do not apply in workers’ compensation:  it is quite another thing to suggest that one of the canons of our ethical code is exempt from the Act.  It is not, and  those who ignore Rule 4.2 do so at their own peril.  But should the rule be applied in the same manner and with the same degree of force when the represented party is an adjuster? The purpose of the rule, as Attorney Drayton noted in his reference to one of the Supreme Court decisions that focused on the application of Rule 4.2, albeit not in a case involving contact with an adjuster, is “to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer.”  Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236 (1990)

Who is the adjuster that needs the full force and protection of Rule 4.2?  The adjuster is a skilled, sophisticated business person (or at least experienced) who handles hundreds of cases at a time, makes daily decisions as to whether and when a claimant will be paid benefits, whether a recommended medical procedure will be authorized, or whether an RME will be required.  Before either side retains counsel the adjuster typically will have had repeated interactions with the claimant, a situation not encountered normally by their counterparts in civil matters.  After counsel is retained, an adjuster acts collaboratively with respondent’s counsel day to day and week to week over the course of a long claim.  Therefore, the adjuster is not a meek sheep about to be slaughtered by a lawyer with superior knowledge and skills.

However to argue that an adjuster cannot be protected by Rule 4.2 is as inane as arguing that Yeats’lascivious and promiscuous Crazy Jane could not be protected under the rape statutes; their relative skills do not disqualify them from being victimized. In response to the concerns raised in Attorney Drayton’s article, and in an effort to maintain the delicate balance between compliance with this onerous ethical edict and adherence to the spirit of the Act, (not to mention providing effective counsel to fickle clients, who may be unable to resist the constant barrage of billboards, buses and television commercials importuning them to get immediate results with their firms)  I have drafted a check-in-the-box letter to respondent’s counsel in cases where an appearance has been filed.  The consent form set out below, is not unlike a Chinese take-out menu asking counsel to select the allowable instances in which I can communicate with an adjuster running the gamut from perfunctory discussions about checks or rides to an RME, to more substantive areas like settlement of cases.

After sending out hundreds of these letters, I have observed that they are widely ignored by opposing counsel.  In the four months that I have been sending them out, only about 30% have been answered.  The responses I have received vary from no contact to carte blanche communication.  Even in the instances I do receive a response from respondent’s counsel, there is the logistical problem posed when my conversation with an adjuster strays from the approved topic of a late check to a proscribed area, such as settlement.  As Attorney Drayton warns in his article, “permission for one communication…is not permission to communicate on any other issues.”

Based on this anemic response, I suspect most attorneys do not care one way or the other about this tempest in a teapot.  I have informally polled a number of respondents’ attorneys who said they just do not want to be embarrassed by not having been privy to ex parte communications.  A luminary of the respondent’s bar recently told me that on more than one occasion he has appeared at a settlement hearing offering the maximum authority provided to him by the adjuster, only to learn that unbeknownst to him, the adjuster made a higher offer to claimant’s counsel in a prior discussion, causing much consternation and confusion at the hearing.  Many respondents’ counsel have opined that the amount of latitude they give to claimant’s counsel to communicate with the adjuster is directly proportionate to their degree of trust in that particular lawyer. Some attorneys will acknowledge that you are doing them a favor and saving a lot of time by running down these pedestrian issues without their involvement, while other attorneys, indeed two entire law firms by my count, that allow no contact once their firm has filed an appearance.

Are there circumstances in which the letter of the rule should yield to the spirit of the operation of the Act?  Attorney Drayton argues, “There are no exceptions to the rule and only if respondent’s counsel consents to such communication is there no violation.”  He suggests that claimant’s counsel could avoid violation of the rule by obtaining prior written approval from counsel, or in the event of a call from the adjuster, by conferencing in the other attorney.  The impracticality of this proposal was highlighted by an adjuster who called me last week, asking for an update on my client who had just had a spinal stimulator implanted.  The adjuster wanted to know whether and when a follow up appointment had been scheduled, and what his work status was because she was not going to keep paying him indemnity benefits without the benefit of a current work status report.  I, in turn, needed to ask her if she would provide authorization for a new medication the doctor had recommended.  My secretary, newly sensitive to this ethical quandary, scrambled to find the consent form in the file while I stalled the adjuster, reading her salient excerpts from Attorney Drayton’s article.  She told me she had no idea this rule existed, although she was refreshingly aware of the prohibition for her to talk to represented claimants. Upon confirmation that her attorney had failed to complete the consent form, I notified the adjuster that I could not talk to her, but that I would contact counsel for consent.  That provoked a geyser of laughter.  “Good luck trying to get him on the phone.  I can never get him.”

In retrospect, the way to have handled that call would have been to provide the adjuster with the information she was looking for, then to document the conversation in an email to the attorney.  Is it a violation of Rule 4.2?  Yes.  Does the need to resolve these issues quickly and efficiently, thereby honoring the spirit of the Act, trump the ethical issue, especially when respondent’s counsel has ignored my efforts seeking consent?  I hope so.

There are other frequent scenarios in which the strict application of Rule 4.2, as it relates to adjusters, begs for mitigation.  Often claimant’s counsel shows up at a hearing in which no attorney has filed an appearance on behalf of either the employer or the insurance company.  The commissioner notes that Attorney Jones, who is either staff counsel for this insurance firm, or frequently represents the carrier, is in the building. Attorney Jones sits in on the hearing, has no file, but dutifully promises to follow up on the benefits owed or the authorization sought, especially in light of the commissioner’s strong recommendation to get the matter quickly resolved.   Can claimant’s counsel still contact the adjuster to convey the commissioner’s recommendation?  Does it matter if respondent’s counsel fails to file an appearance following this hearing?

What about the adjuster who calls claimant’s counsel in response to counsel’s demand letter addressed to respondent’s counsel, staff counsel, advising that she negotiates all of her own settlements?  Is claimant’s counsel really expected to rebuff this contact by telling the very person who controls the purse strings that he cannot talk to her directly until he has cleared it with opposing counsel? As difficult as it is to get in touch with adjusters, (even Attorney Drayton obliquely references the byzantine communication system in which an email can ricochet back and forth across the United States several times before arriving in an adjuster’s email bin) it is even more difficult to get a response from many respondent’s counsel, as adverted to above.

And if the issue is as banal as a delayed periodic payment or authorization for a procedure, is it exalting form over substance to waste a week or two it will inevitably take to get counsel’s permission to discuss the matter directly with the adjuster, then to get a call back from the adjuster?  Is it efficient use of time to tell the adjuster, who may well be ready to issue the late check or provide the procedure ordered by the doctor, that you will have to consult with opposing counsel first?

Clearly, there are instances when it is improper for claimant’s counsel to communicate with an adjuster.  If the case has taken an adversarial turn such that you are contemplating an undue delay claim, or if there is a contested component of the case, one would be well served to refrain from communication with the adjuster.  If the other attorney has advised you that you are to deal directly with her, then I believe you must honor that request. If the commissioner has made a recommendation at a hearing, which the attorney has to filter through the adjuster, you should not call the adjuster directly as a shortcut, and you should certainly never represent that a commissioner’s “recommendation” at an informal hearing was an “order”.   If you are not sure whether your proposed communication with an adjuster is harmless or egregious, you should refrain from the communication.  If you do communicate with the adjuster directly, copy counsel on the letter, or email a summary of the telephone conversation.  If the attorney finds this communication offensive, he will undoubtedly ask you to desist.

How about the law of unintended consequences?  An adjuster recently called me on a case while the ideas for this article were percolating through my head, to discuss settlement of a workers’ compensation claim on a third party claim I had handled.  Four months earlier, I had sent a letter to counsel proposing a resolution of the lien, along with my consent form, both of which went unanswered.  I told the adjuster I could not discuss settlement with her because she was represented by counsel.  She told me to check my email in 15 minutes, after which time she thought I would no longer have an ethical dilemma. Sure enough, soon there was an email from her enclosing a copy of her letter to the attorney asking him to close his file and submit the bill.  When I called her back, she explained that she had provided authority to settle the case in accordance with my proposal two months earlier.  It gave me no pleasure to learn that this attorney had been terminated in part because of my attempt to comply with Rule 4.2.

And if the garden variety contact with an adjuster is truly not allowable, then how is it that nurse case managers, who are often thinly veiled double agents, having direct communication with the claimant, and the treating physician, and often in the sanctity of the examination room, are able to act as conduits of such communications to the adjusters, and ultimately, respondent’s counsel?  Is it a grievable offense for these agents of the insurance company, and therefore, ultimately agents of respondent’s counsel, to have such communication with claimants?

Perhaps the best approach in terms of communication with an adjuster is the one my daughter uses when she wants to pet an unfamiliar dog.  She asks the owner if it’s okay.  Ask the attorney at the outset of the case whether, and under what circumstances, it is acceptable to communicate with the adjuster.  Know whom you are asking.  If you fail to ask the other attorney, then you cannot justifiably complain when you are bitten.  And to the Bishops of our bar, I would ask that you continue to exercise sound discretion in allowing communication that honors the spirit of the act.  If our (claimant’s counsel) pedestrian gaze strays too far from the commandment, tell us: a word to the wise is superfluous.There are no easy answers, no clear lines to be drawn in our world of workers’ compensation.  As Attorney Drayton pointed out, there appears to be no case law in this regard.  Perhaps that is a compliment to all of us who toil every day in this mansion of messy conflicts that we have pitched.

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