Could a lawyer send a prejudgment-interest demand directly to a represented defendant?

Plain-English summary

A lawyer asked how to send a prejudgment-interest demand under section 408.040, RSMo., believing the statute might require direct service on a represented opposing party.

Because the lawyer was uncertain about the statute's meaning, the opinion directed an initial request that opposing counsel accept notice for the defendant. If counsel refused, direct service could follow. If counsel agreed, the lawyer could not send the notice directly. The opinion did not resolve the statute's interpretation.

Currency note

This 1995 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: What was the first step described in the opinion?

A: Ask opposing counsel to accept the notice for the defendant.

Q: When could notice go directly to the defendant?

A: If opposing counsel refused to accept it.

Q: What if counsel accepted notice?

A: The opinion barred a direct mailing to the represented defendant.

Background and rules framework

The opinion addressed communication with a represented defendant about a demand under section 408.040, RSMo. It cited no numbered ethics rule and left the statute's interpretation unresolved.

Citations and references

Statutes:

• Section 408.040, RSMo., prejudgment-interest demand (interpretation left open)

See also

• Missouri Informal Op. 950161: Copying represented opposing party
• Missouri Informal Op. 950038: Investigator barred contact

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950012/

Original opinion text

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

QUESTION: Attorney asks about the proper procedure for sending a prejudgment interest demand letter pursuant to section 408.040, RSMo. May the letter be sent directly to the opposing party even when that party is represented by counsel. Attorney believes that this is what the statute requires. ANSWER: In light of Attorney´s uncertainty of the interpretation of the statute, Attorney should contact opposing counsel and request opposing counsel to accept notice on behalf of the defendant. If opposing counsel refuses, Attorney may proceed to serve the defendant directly. If opposing counsel consents to receiving the notice on behalf of the defendant, Attorney may not directly send the notice to the defendant.