Is it improper for a lawyer to tell the trial judge the amount of a rejected settlement offer before trial?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

The Board considered whether it is proper for an attorney to make comments to a judge that are privileged, inadmissible in evidence, prejudicial to the other party's rights, and destructive of the judge's impartiality and neutrality. The situation arose when a presiding judge, before trial, asks about settlement prospects and one attorney states the amount of a settlement offer and that it was declined; the opinion noted instances where, on motions for additur or remittitur, judges adjusted jury verdicts to the exact amount of a prior settlement offer.

The opinion explained that the law favors compromise and protects parties' settlement "bids for peace" as confidential and privileged matter to be encouraged, citing Strong v. Stewart, 56 Tenn. 137 (1872), and McCormick's Law of Evidence on the rule excluding offers of compromise, which applies where there is an actual dispute or apparent difference of view as to the validity or amount of the claim, but not to an offer to pay an admitted claim.

Applying Disciplinary Rule 1-102(A)(5), which bars conduct prejudicial to the administration of justice, the opinion concluded that it is a violation of that rule, and therefore improper, for an attorney to make comments to a judge that are privileged, inadmissible in evidence, prejudicial to the rights of the other party, and destructive of the judge's impartiality and neutrality.

Common questions

Q: Can a lawyer tell the judge the amount of a rejected settlement offer?

A: No. The opinion concluded it is "a violation of DR 1-102(A)(5) and, therefore, improper for an attorney to make comments to a judge which are privileged, inadmissible in evidence, prejudicial to the rights of the other party and destroy the impartiality and neutrality of the judge."

Q: Why are settlement offers treated this way?

A: The opinion explained that the law favors compromise and protects parties' settlement overtures as "confidential and privileged matter which are to be encouraged and promoted," so disclosing them to the trier can prejudice the other party.

Q: Does the exclusionary rule cover an offer to pay an admitted claim?

A: No. Quoting McCormick, the opinion noted the rule requires "an actual dispute, or at least an apparent difference of view, between the parties as to the validity or amount of the claim," and that "[a]n offer to pay an admitted claim is not privileged."

Background and rules framework

The opinion applied Disciplinary Rule 1-102(A)(5) (conduct prejudicial to the administration of justice) of the Tennessee Code of Professional Responsibility, together with the evidentiary rule excluding offers of compromise (Strong v. Stewart, 56 Tenn. 137 (1872); McCormick's Law of Evidence). The modern correlates are Model Rule 3.5 (impartiality of the tribunal; improper ex parte communication) and Model Rule 8.4(d) (conduct prejudicial to the administration of justice), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 1-102(A)(5) (conduct prejudicial to the administration of justice), Tennessee Code of Professional Responsibility
• Model Rule 3.5 (impartiality of the tribunal) and Model Rule 8.4(d) (conduct prejudicial to the administration of justice), modern correlates

Cases:

• Strong v. Stewart, 56 Tenn. 137 (1872), settlement overtures are confidential and privileged

Other references:

• McCormick's Law of Evidence (2d ed.), the rule excluding offers of compromise

See also

• CA Ethics Op. 1984-078: Ex Parte Communication With the Trial Judge
• CA Ethics Op. 1984-082: Ex Parte Communication and Administrative Law Judges

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-45

Original opinion text

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

83-F-45 - Ex Parte communications to judge

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-45

Inquiry is made concerning the propriety of an attorney making comments to a Judge which are privileged, inadmissible in evidence, prejudicial to the rights of the other party and destroy the impartiality and neutrality of the Judge.

The circumstances stated in the inquiry occur in some jurisdictions when the presiding judge, prior to trial, makes inquiry as to the chances of settlement of the lawsuit. On some occasions, one of the attorneys will state the amount of the settlement offer and state that the offer has been declined. There have been instances when cases have been tried and the jury verdicts differed from the settlement offers by 50 to 100% and, on motions for additur or remittitur, the judge increased or decreased the verdicts to the exact amount of the settlement offer.

Inquiry is, therefore, made concerning the ethical propriety of an attorney, in such instances, stating the amount of the settlement offer to the trial judge.

The law favors the compromise of matters in litigation. It is against the policy of the law that the parties should be prejudiced by their 'bids for peace', or overtures, or agreements made with a view to stop litigation. These overtures of pacification are protected in the law as confidential and privileged matter which are to be encouraged and promoted. Strong v. Stewart, 56 Tenn. 137 (1872).

McCormick's Law of Evidence, Second Edition, in discussing the privilege or rule of exclusion states:

... the rule excluding evidence of offers of compromise is designed to encourage compromise ... whether it is classed as a privilege or rule of exclusion is attended by no practical consequences. Sec. 74, p. 154.

To call into play the exclusionary rule, there must be an actual dispute, or at least an apparent difference of view, between the parties as to the validity or amount of the claim. An offer to pay an admitted claim is not privileged. There is no policy of encouraging compromises of undisputed claims. They should be paid in full. If the validity of the claim and the amount due are undisputed, an offer to pay a lesser sum in settlement or to pay in installments would accordingly be admissible. Sec. 274, p. 663.

Disciplinary Rule 1-102(A)(5) provides that an attorney shall not engage in conduct that is prejudicial to the administration of justice. It is a violation of DR 1-102(A)(5) and, therefore, improper for an attorney to make comments to a judge which are privileged, inadmissible in evidence, prejudicial to the rights of the other party and destroy the impartiality and neutrality of the judge.

This 14th day of April , 1983.

ETHICS COMMITTEE:

F. Evans Harvill

Oscar B. Hofstetter, Jr.

William R. Willis

APPROVED AND ADOPTED BY THE BOARD