Unauthorized Practice Of Law By Insurance Claims Adjusters

Unauthorized Practice of Law By Insurance ClaimsAdjustersThis article will examine the issue of the unauthorized practice of law by insurance claim adjusters. While unauthorized practice of law as a general topic has received wide attention in caselaw and law review comments, the narrower issue of unauthorizedpractice by insurance adjusters has received relatively little attention. The cases which have dealt with this problem, while few innumber, have adhered to fairly consistent principles. Thus, by ananalysis of these cases and the principles developed therein, thisarticle will, it is hoped, shed light on an area of legal ethics of concern to the legal community.In order to determine when an insurance adjuster is practicinglaw without authority, one should first examine how insurance adjusters are enlployed and how an insurance claim adjustment ismade. A claims adjuster represents insurance companies in the settlement of claims brought against the company. Claims adjustersgenerally work in one of several situations: directly for the company, for an adjustment bureau, as self-employed adjusters or aspublic adjusters.' Public adjusters, as well as other independentclaims adjusters not employed by or acting on behalf of insurancecompanies, often work on a percentage of the settlement bash2 Itis with these adjusters that unauthorized practice questions mostfrequently arise.The term adjustment is used in the law of insurance in morethan one sense. Frequently it refers simply to the steps leadingto an ascertainment of the amount of value or loss, or in thecase of non-agreement between the parties, the steps precedingthe selection of arbitrators or appraisers. An adjustment hasalso been defined as the settling and ascertaining of theamount of indemnity which the insured after making all properallowances, is entitled to receive or the amount of the loss, as ettled. That unauthorized practice of law is "illegal" is clear and1. A. Sandri White, Insurance Claims, Investigating and Adjusting 3 (1966).2. Id. at 4.3. 44 Am. Jur. 2d Ins. 8 1674 (1982).

172The Journal of the Legal Professionneeds no citation of support. What is not so clear, however, is whatconstitutes unauthorized practice. It is helpful in examining thisissue to see how courts have defined authorized or "legal" practiceof law and who may engage in such practice.The legislatures of some states have attempted to define the"practice of law" in state statutes. Most of these statutes fail toprecisely define "practice of law," leaving this role in the regulation of legal practice to the respective judiciaries. Some of thesestatutes have been held unconstitutional by state judiciaries, wherethe statute authorized nonattorneys to engage in the practice ofFormulating a consise definition of the phrase "practice oflaw" has proven to be an onerous task for the courts. The Massachusetts Supreme Court, when faced with the necessity of formulating such a definition stated, "[ilt is practically impossible toframe any comprehensive and satisfactory definition of what constitutes the practice of law, it being necessary to decide each caseupon its own particular fact ." The Rhode Island Supreme Courthas similarly commented that, "[tlhe practice of law is difficult todefine. Perhaps it does not admit of exact definiti n," and that,"[wlhat constitutes the practice of law is extremely difficult, if notunwise, to even attempt to define, and so determination of any issue that presents this question must be left to the facts in eachparticular case."'Courts' findings have differed on the particular attributes constituting the practice of law. Courts have, however, been consistentin finding that law practice encompasses more than drafting of legal instruments and representing clients in court.s An Indiana Appellate Court's definition of "practice of law" has received wideapproval:4. See generally Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So. 2d 536(Ala. 1943), cert. denied, 320 U.S. 787 (1943); Professional Dusters, Inc. v.Tandon, 433 N.E.2d 779 (Ind. 1982).5. In re Mfrs. Protective Ass'n, 295 Mass. 369, 3 N.E.2d 746, 748 (1936).179 A.6. Rhode Island B. Ass'n v. Automobile Serv. Ass'n, 55 R.I. 122, ,139, 140 (1935).7. Creditor Serv. Corp. v. Cummings, 96 R.I. 151, 190 A.2d 2, 7 (1937).8. See People ex rel. Lawyers Inst. v. Merchants Protective Corp., 189 Cal.531, 209 P. 363, 365 (1922), Richmond Ass'n v. B. Ass'n, 167 Va. 327,189 S.E. 153(1937); see also Grand Rapids B. Ass'n v. DeKema, 290 Mich. 56, 287 N.W. 377(1939).

Insurance Claims Adjusters173As the term is generally understood, the "practice of law" isdoing or performing services in a court of justice, in any matterdepending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger senseit includes legal advice and counsel, and the preparation of legal instruments and contacts, by which legal rights are secured,although such matters may or may not be pending in a c0urt.OThe practice of law by persons not duly admitted to the bar ofthe state in which they are conducting business constitutes unauthorized practice of law.lo The practice of law is restricted to licensed attorneys who, "practice under rigid ethical restraints imposed by the courts, state legislatures and the bar."" The practiceof law has been closely guarded by attorneys and organized barassociations. Lawyers have made concerted efforts to prevent otherprofessional and business groups from invading their realm.12 Barassociations generally maintain that such actions are necessary toprotect the dignity of the judicial process and to protect the publicfrom incompetent practitioners.13 One court, commenting on thepurposes underlying the proscription of unauthorized practice oflaw, stated that:[Wlhen a person holds himself out to the public as competentto exercise legal judgment, he implicitly represents that he hasthe technical competence to analyze legal problems and therequisite character qualifications to act in a representative capacity. When such representations are made by persons notadequately trained or regulated the dangers to the public aremanifest."The Pennsylvania Supreme Court, in an unauthorized practicecase, stated that "[tlo practice law a person must demonstrate areasonable mastery of legal skills and principles, be a person of9. Eley v. Miller, 7 Ind. App. 529, ,34 N.E. 836, 837-838 (1893).10. See generally Code of Professional Responsibility, American Bar Ass'n(1969), effective Jan. 1, 1970; Statement of Principles with respect to the Practiceof Law, American Bar Ass'n, Dec. 1970.11. Comment, The Unauthorized Practice of Law by Laymen and Lay Associations, 54 CAL.L. REV.1331, 1362 (1966) [hereinafter cited as "UnauthorizedPractice"]; see generally 48 A.B.A.J. 99, 112, 114 (1962).12. See generally 48 A.B.A.J.at 112, 114.13. See Comment, Unauthorized Practice, supra note 11.14. Dauphin Co. Bar Ass'n v. Mazzacaro, 465 Pa. 5 4 5 , , 351 A.2d 229,232(1976).

The Journal of the Legal Profession174high moral character and maintain a continuing allegiance to aThe court noted the pervastrict code of professional c nduct."' siveness of legal consequences in our modern society and how, "legal consequences often weave their way through even casual contemporary interactions."le The court noted further that in somecases lay persons can clearly appreciate "the legal problems andconsequences involved in a given situation and the factors whichshould influence necessary decisions."" In these cases, the courtadded, "[nlo public interest would be advanced by requiring theselay judgments to be made exclusively by la yers."' The court,however, distinguished those situations in which a legal judgmentis necessary. These include situations in which a proper judgment"requires the abstract understanding of legal principles and a refined skill for their concrete applicati n."' The line between nonregulated lay judgment and legal judgments is very often a thinline at best. The Pennsylvania Court found that this line was discernible nevertheless. The court stated that "[elach given casemust turn on a careful analysis of the particular judgment involvedand the expertise that must be brought to bear on its exercise."20The insurance claim adjuster plays a vital role in the overalloperation of insuring individuals, groups and businesses againstrisk of loss. The adjuster's duties can be divided into three maincategories. These duties, present in every claim, may be describedas investigation, evaluation and adju tment. 'The investigatormust investigate the claim, gather and evaluate the facts and thenrecommend a e t t l e m e n t . Insurance adjusters deal with two major categories ofclaims-"First-Party"claims and "Liability" or "Third-Party"claims.23The difference between these may be illustrated by contrasting- automobile collision and liability insurance.24 Collisioncoverage insures the policyholder against damage to his person or15.16.17.18.19.20.21.22.23.24.Id. a t , 351 A.2d at 233.Id.Id.Id.Id.Id.White, supra note 1, at 5, 8.Id. at 8.Id.Id.

Insurance Claims Adjusters175property. If collision policy holder X has an accident damaging hiscar and files against his insurance, he will have a First-Party l a i m . T hdamageeto his car will be compensated despite anynegligence X may have committed in causing the accident.26Theclaims adjuster in this case need only ascertain whether the cardriven by X was one insured under X's policy, and if so, the extentof the loss (the damage to the car) suffered by X.27In a Liability or Third-Party claim, however, "the damage issuffered by a person not specifically covered by the insurance policy."2e "Liability insurance . . insures the policyholder against theconsequences of his negligen e." If X is involved in an auto accident with Y and Y files a claim against X's insurance company, Yhas a Third-Party claim. In this case, the claims adjuster representing X's insurance company must investigate the accident. Heor she must ascertain all of the facts surrounding the accident toenable the insurer to determine which party it believes was a tfault. The adjuster's investigation may reveal that one or both orneither person was to blame, or that fault is impossible to determine on the basis of the available information. In a Third-Partyclaim, the concept of "fault" is important to the outcome of theclaim. On the basis of the claim adjuster's investigation and reportof facts and circumstances, the attorneys working for X's insurancecompany will attempt to ascribe "fault." On this basis, X's insurerwill decide either to pay or refuse to pay Y's claim.In the above illustrations, the claims adjuster who investigatedeach case might have been involved in one of several employmentsituations. A claims adjuster may act on behalf of an insurancecompany in adjusting the company's claims. In representing theinsurance company, the adjuster may be an employee of the company's claims department; an employee of an independent adjustment bureau acting under agreement with the company; or a selfemployed adjuster acting under agreement with the company.s0In some cases the claims adjuster may not be acting on behalfof any insurance company. The adjuster may instead be acting asone independent adjuster representing an insured in his or her.25. Id. at 8, 9.26. Id.27. Id.28. Id.29. Id. at 10.30. Id. at 3.