Can a plaintiff's lawyer write directly to an unrepresented adverse driver to propose a settlement within his insurance policy limits?

Plain-English summary

A plaintiff's lawyer wished to write to a person who was not represented by counsel and who had been in an automobile collision with the plaintiff. The letter would offer to settle the plaintiff's claim for an amount within the limits of the addressee's insurance policy, suggest that the addressee might escape personal liability by urging the insurer to settle within policy limits, and also suggest that the addressee consult his own lawyer.

The Committee concluded that the situation presented would not constitute a violation of the Canons of Ethics (6-2).

Currency note

This opinion was issued in 1954, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Communication with an unrepresented person is now governed by Texas Disciplinary Rule 4.03 and ABA Model Rule 4.3. 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 Treat this page as historical context, not current guidance.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: Could a plaintiff's lawyer write directly to the unrepresented adverse party with a settlement offer?

A: Yes. The Committee concluded that the described letter would not violate the Canons of Ethics (6-2).

Q: Could the letter suggest the recipient push his insurer to settle within policy limits?

A: The opinion treated a letter that both made that suggestion and suggested the recipient consult his own lawyer as not improper.

Q: How close was the vote?

A: The Committee divided 6-2, so two members would have found the letter improper.

Background and rules framework

The opinion interprets former Texas Canon 9, which addressed a lawyer's dealings with the opposite party. The modern analog is ABA Model Rule 4.3 (dealing with an unrepresented person) and Texas Disciplinary Rule 4.03.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• Texas Canon 9 (negotiations with the opposite party)

See also

• TX Ethics Op. 117: Obtaining a Statement From an Opposing Party
• TX Ethics Op. 130: Claimant's Lawyer's Letter to a Tortfeasor

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-101/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_101.pdf

Original opinion text

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

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for plaintiff's attorney to write a letter to a person not represented by counsel who had been involved in an automobile collision with plaintiff, offering to settle plaintiff's claim for an amount within the limits of an insurance policy held by the addressee, suggesting that the addressee might escape personal liability by urging the insurance company to settle within policy limits, and suggesting, also, that the addressee consult his own lawyer?

18 Baylor L. Rev. 236 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - OFFER TO SETTLE
A letter, written by plaintiff's attorney to an unrepresented party who has been involved in an automobile collision with plaintiff, suggesting that the opposite party might escape personal liability by urging his insurance carrier to settle plaintiff's claim within the former's policy limits and also suggesting that he consult a lawyer is not improper.

Canon 9.

The committee is of the opinion that the situation presented in the above question would not constitute a violation of the Canons of Ethics. (6- 2)

Tex. Comm. On Professional Ethics, Op. 101 (1954)