Before filing suit, can a lawyer send an unrepresented defendant a letter that explains the effect of a settlement on the defendant's personal liability and warns that the insurer's defense lawyer may have divided loyalties?

Plain-English summary

A lawyer represented a plaintiff in an automobile-accident matter and could not settle with the defendant's liability carrier, so the lawyer planned to sue. Before filing, the lawyer wanted to send the unrepresented defendant a letter that, among other things, explained that a settlement "would avoid even the possibility that you might have personal exposure for payment of part of a judgment," stated that suing the defendant "has become necessary" and "nothing personal is intended," recommended the defendant consult his own lawyer if he carried only minimum coverage, and warned that the carrier's appointed defense lawyer would have a "responsibility divided between you and the insurance company." The question was whether sending that letter would violate the Rules of Professional Conduct.

The opinion concluded that it would. It applied Rule 7.4(b), which prohibits a lawyer from giving advice to a prospective opposing party who is not represented by counsel, other than the advice to secure counsel. The opinion found two problems. First, the letter's advice to secure counsel was not offered to cure a conflict on the plaintiff's lawyer's part; it was offered as legal advice to the defendant about a possible conflict in any lawyer the carrier might retain, and the letter also advised the unrepresented defendant about the effect of a settlement on his personal liability. Second, the opinion found the general tenor of the letter, through statements such as "nothing personal is intended by this action," implied the plaintiff's lawyer was disinterested and actually concerned with protecting the defendant. The opinion held that to be a clear violation of Rule 7.4(c), which bars a lawyer dealing on a client's behalf with an unrepresented person from stating or implying that the lawyer is disinterested and requires the lawyer to correct any misunderstanding of the lawyer's role.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a plaintiff's lawyer write an unrepresented defendant before filing suit?

A: A bare communication is not automatically barred, but this letter went too far. The opinion concluded the letter violated Rule 7.4(b) and (c) because it gave the unrepresented defendant legal advice and implied the lawyer was disinterested.

Q: Does telling the defendant to "consult a lawyer" make the letter acceptable?

A: No, on these facts. The opinion treated the advice to secure counsel as improper here because it was given in the course of advising the defendant about a possible conflict in the carrier's appointed lawyer, not to cure a conflict of the plaintiff's lawyer.

Q: What made the letter imply the lawyer was disinterested?

A: Its tenor. The opinion pointed to statements such as "nothing personal is intended by this action," which implied the plaintiff's lawyer was concerned about and protecting the defendant's interests, in violation of Rule 7.4(c).

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.4(b) and (c), the provisions governing a lawyer's dealings with an unrepresented person, which correspond to Model Rule 4.3. Rule 7.4(b) limited a lawyer's advice to an unrepresented opposing party to the advice to secure counsel, and Rule 7.4(c) barred the lawyer from stating or implying disinterest and required correction of any misunderstanding of the lawyer's role.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with unrepresented person)
• North Carolina Rule 7.4(b) (advice to unrepresented opposing party limited to securing counsel)
• North Carolina Rule 7.4(c) (lawyer may not state or imply disinterest)

See also

• NC Ethics Op. RPC 193: communicating with an uninsured or underinsured defendant
• NC Ethics Op. RPC 219: public-records request to a represented adverse party
• NC Ethics Op. RPC 30: communication with a represented criminal defendant

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-194/

Original opinion text

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

Inquiry:

Plaintiff and Defendant were involved in an automobile accident. Plaintiff retained Attorney to represent her. Attorney attempted to negotiate a settlement with Defendant's liability insurance carrier without success. Attorney decided to file suit. Prior to filing the complaint and serving the complaint on Defendant, Attorney wants to send Defendant, who is unrepresented, a letter. The letter will inform Defendant that Attorney represents Plaintiff in connection with the accident and that Attorney attempted to settle the case with the carrier. The letter will include the following statement:

Such a settlement would avoid litigation and would avoid even the possibility that you might have personal exposure for payment of part of a judgment, should you have insufficient liability insurance to cover a judgment.

The letter will also indicate that the insurance carrier either failed to negotiate or was unwilling to pay what Attorney believed to be a fair settlement and that "this means we must sue you on behalf of our client." The letter will advise Defendant to contact his insurance adjuster upon receiving the suit papers. The letter will then state the following:

Please understand that nothing personal is intended by this action. It has become necessary because we have been unable to settle the case with your insurance carrier.

The letter will recommend that Defendant consult a lawyer of his own choosing if Defendant has only minimum liability insurance coverage. The letter will conclude with the following statement:

Although the insurance company will hire a lawyer to defend this claim, his or her responsibility will be divided between you and the insurance company. Sometimes, your interests and that of the insurance company are not the same.

Will the content of this letter violate the Rules of Professional Conduct?

Opinion:

Yes. Rule 7.4(b) prohibits a lawyer from giving advice to a prospective opposing party who is not represented by a lawyer, other than the advice to secure counsel. In the letter, the advice to secure counsel is given not in an attempt by Attorney to avoid a conflict of interest on his own part but in the context of giving Defendant legal advice about a possible conflict of interest on the part of any lawyer who may be retained by the insurance carrier to defend Defendant. The letter also gives the unrepresented Defendant advice about the effect of a settlement on his personal liability.

More problematic is the general tenor of the letter which, through numerous statements such as "nothing personal is intended by this action," implies that Attorney is not only disinterested but he is actually concerned about and protecting the interests of Defendant. This is a clear violation of Rule 7.4(c) which states

...in dealing on behalf of a client with a person who is not represented by counsel, [a lawyer shall not] state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.