Can a lawyer send a statutory demand notice directly to an unrepresented opposing party?

Plain-English summary

The opinion addressed whether sending the demand notice required by O.C.G.A. 51-12-14 directly to an unrepresented party violates Standard 48, which bars a lawyer from giving advice (other than to secure counsel) to an unrepresented person whose interests are or may be in conflict with the lawyer's client. The statute requires written notice of a demand for unliquidated damages to the person against whom the claim is made in order to entitle the claimant to 12 percent interest where the judgment equals or exceeds the sum claimed.

The Board distinguished its earlier Formal Opinion 86-4, which found it improper for a plaintiff's attorney to write an insured defendant about the insurer's potential liability for failing to settle within policy limits; there the letter implicitly advised settlement and risked creating a false impression that the attorney was acting in the recipient's interest. The policy behind Standard 48, the Board explained, is to avoid creating in an unrepresented party the false impression that the attorney is advising in accordance with that party's interests or is neutral in the dispute. A formal notice required by law raises much less of that concern.

The Board concluded the statutory notice may be sent to an unrepresented party so long as it states specifically that it is a notice rather than advice. The sending lawyer must inform the unrepresented opposing party that the notice is sent merely to establish a claim for interest, that it is not to be construed as legal advice, that the recipient may seek independent legal advice, and that the lawyer represents the opposing interests. If the adverse party is represented, the notice need not contain those disclaimers but must be sent to the party's attorney under Standard 47.

Currency note

This opinion was issued in 1988, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Standards of Conduct this opinion construes. The State Bar's headnotes map Standard 48 to Rules 4.3(a) and 4.3(b) (dealing with an unrepresented person) and Standard 47 to Rule 4.2(a) (communication with a represented person). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer send a statutory demand notice straight to an unrepresented opposing party?

A: Yes, under this opinion, if the notice makes clear it is sent only to establish a claim for interest, is not legal advice, that the recipient may seek independent counsel, and that the lawyer represents the opposing interests.

Q: Why is this different from the prohibited letter in Opinion 86-4?

A: The opinion explained that Standard 48 guards against creating a false impression that the lawyer is advising in the recipient's interest or is neutral; a formal notice required by statute, sent with disclaimers, raises much less of that concern than a letter implicitly advising the recipient on settlement.

Q: What if the opposing party is represented by a lawyer?

A: The opinion stated that the statutory notice then need not contain the disclaimers but must be sent to the party's attorney rather than the party, under Standard 47.

Background and rules framework

The opinion construed former Standard of Conduct 48 (no advice to an unrepresented person whose interests may conflict, other than to secure counsel) and Standard 47 (communication with a represented person), now associated with Rules 4.3(a) and 4.3(b) and Rule 4.2(a). It applied the statutory notice requirement of O.C.G.A. 51-12-14, the Unliquidated Damages Interest Act.

Citations and references

Rules of Professional Conduct:

• MR 4.3 / Ga. RPC 4.3(a), 4.3(b) (dealing with an unrepresented person; analog to former Standard 48)
• MR 4.2 / Ga. RPC 4.2(a) (communication with a represented person; analog to former Standard 47)

Former standards construed:

• Standards of Conduct 47 and 48

Statutes:

• O.C.G.A. 51-12-14 (Unliquidated Damages Interest Act; demand notice required to recover 12 percent interest)

Other opinions cited:

• Georgia Formal Advisory Opinion 86-4 (distinguished)
• ABA Informal Opinion 734 (1964)

See also

• GA Ethics Op. 86-4: Plaintiff's Attorney Writing to an Insured Defendant
• ABA Formal Op. 95-396: Communications With Represented Persons
• ABA Formal Op. 472: Communicating With a Person Receiving Limited-Scope Services

Source

• Landing page: https://www.gabar.org/handbook?rule=rule515

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

State Bar of Georgia

Issued by the Supreme Court of Georgia

On November 29, 1988

Formal Advisory Opinion No. 88-3

For references to Standard of Conduct 48, please see Rule 4.3(a) and 4.3(b) .

For references to Standard of Conduct 47, please see Rule 4.2(a) .

For an explanation regarding the addition of headnotes to the opinion, click here .

Ethical Propriety of Sending Notice Pursuant to O.C.G.A. § 51-12-14 to an Unrepresented Party.

It is ethically permissible to send the notice required by O.C.G.A. § 51-12-14 to an unrepresented party. An attorney sending the required notice, however, must do so in such a manner as to inform the unrepresented opposing party that the notice is sent merely to establish a claim for interest, that it is not to be construed as legal advice, and that the attorney sending the notice represents the opposing interests in the dispute.

Correspondent asks if it is a violation of Standard 48 of the Rules and Regulations of the State Bar of Georgia for correspondent to comply with the notice requirement of O.C.G.A. § 51-12-14 by sending a demand notice to an unrepresented party. That statute requires that written notice of the demand for unliquidated damages be sent to the person "against whom the claim is made "in order to entitle the claimant to receive twelve (12) percent interest on judgments in excess of unliquidated damages. 1

Standard 48 provides:

During the course of his representation of a client a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

In interpreting Standard 48, Formal Opinion No. 86-4 (86-R7), concluded that it was ethically improper for a plaintiff's attorney to send a letter directly to an insured defendant which would notify the defendant about the potential liability of his or her insurer for failure to settle within policy limits. The letter would be considered "legal advice "in that plaintiff's attorney impliedly would be advising settlement within policy limits. Accord, ABA Informal Opinion 734 (June 16, 1964). The Opinion correctly focused upon the policy behind Standard 48 which is to avoid creating in an unrepresented party a false impression that the attorney is advising inaccordance with the unrepresented party's interests or is neutral in the dispute. The present situation is distinguishable. Where an attorney sends a formal notice which is required by law, there is much less concern that a false impression will be created.

It is ethically permissible to send the notice required by O.C.G.A. § 51-12-14, stating specifically that it is a notice rather than advice. An attorney sending the required notice, however, must do so in such a manner as to inform the unrepresented opposing party that the notice is sent merely to establish a claim for interest, that it is not to be construed as legal advice, that the recipient may seek his independent legal advice and that the attorney sending the notice represents the opposing interests in the dispute. 2

1 The full text of O.C.G.A.§ 51-12-14 is as follows:

"Procedure for demand of unliquidated damages in tort actions; when interest may be recovered.

(a) Where a claimant has given written notice by registered or certified mail to a person against whom claim is made for unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days from the mailing of the notice, the claimant shall be entitled to receive interest on the claimed sum if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the sum claimed.

(b) The written notice referred to in subsection (a) of this Code section may be given on only one occasion and shall specify that it is being given pursuant to this Code section.

(c) The interest provided for by this Code section shall be at the rate of 12 percent per annum and shall begin to run from the thirtieth day following the date of the mailing of the written notice until the date of judgment.

(d) Evidence or discussion of interest on liquidated damages, as well as evidence of the offer, shall not be submitted to the jury. Interest shall be made a part of the judgment upon presentation of evidence to the satisfaction of the court that this Code section has been complied with and that the verdict of the jury or the award by the judge trying the case without a jury is equal to or exceeds the amount claimed in the notice.

(e) This Code section shall be known and may be cited as the "Unliquidated Damages Interest Act."(Ga. L. 1968, p. 1156, § 1, Ga. L. 1975, p. 395, § 1; Ga. L. 1981, p. 681, § 1.)"

2 If the adverse party isrepresented, the statutory notice need not contain the disclaimers here described, but must be sent to the adverse party's attorney rather than the party. Standard 47.