Can a plaintiff's lawyer take a written statement from the defendant after suit is filed but before the defendant answers?

Plain-English summary

The inquiry asked whether it violates the Canons for the attorneys representing a plaintiff, after suit is filed but before an answer is filed, to obtain a written statement (secured in the presence of a reporter) from the defendant.

The Committee held the described conduct would violate Canon 9 if the defendant were represented by counsel. It further concluded that, even where the defendant is not represented, it would be unethical to take a statement without first inquiring whether the defendant had retained counsel and giving the defendant a reasonable opportunity to employ counsel. The opinion was unanimous (8-0).

Currency note

This opinion was issued in 1955, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 the plaintiff's lawyer take a statement from a represented defendant under this opinion?

A: No. The Committee held that doing so would violate Canon 9 where the defendant is represented by counsel (8-0).

Q: What if the defendant has no lawyer yet?

A: Even then, the Committee held it unethical to take a statement without first asking whether the defendant had retained counsel and giving him a reasonable opportunity to employ counsel.

Background and rules framework

The opinion interprets former Texas Canon 9 of the Canons of Ethics of the State Bar of Texas, governing dealings with an opposing party. The modern analogs are ABA Model Rule 4.2 (communication with a represented person) and Model Rule 4.3 (dealing with an unrepresented person).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person), as the modern analog
• MR 4.3 (dealing with an unrepresented person), as the modern analog
• Texas Canon 9 (dealings with the opposite party)

See also

• TX Ethics Op. 130: Letter to an Unrepresented Tortfeasor
• TX Ethics Op. 137: A Prosecutor and a Represented Defendant
• TX Ethics Op. 163: Writing a Represented Defendant on Settlement
• TX Ethics Op. 170: Copying a Represented Defendant on a Settlement Letter

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-117/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_117.pdf

Original opinion text

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

QUESTION PRESENTED

Would it violate the Canons of Ethics for the attorneys representing plaintiff, after suit is filed but before answer is filed, to obtain a written statement (secured in the presence of a reporter) from the defendant?

18 Baylor L. Rev. 241 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - OBTAINING STATEMENTS
Obtaining a written statement from an opposite party in the absence of the attorney retained by the party is unprofessional. Inquiry as to whether he has retained counsel should be made and a reasonable opportunity to employ counsel should be given before a statement is obtained.

Canon 9.

The committee is of the opinion that the above described conduct would violate Canon 9 if the defendant were represented by counsel. We are of the opinion also that it would be unethical to take a statement from the defendant without (1) inquiring whether he had retained counsel, and (2) giving defendant a reasonable opportunity to employ counsel. (8-0)

Tex. Comm. On Professional Ethics, Op. 117 (1955)