Can a claimant's lawyer write the unrepresented tortfeasor about the claim, and how much can the letter say about the law and the recipient's position?

Plain-English summary

The inquiry quoted a detailed letter a personal-injury claimant's lawyer proposed to send to an unrepresented tortfeasor. The letter notified him of the claim, told him to report it to his liability insurer, explained the Stowers doctrine on an insurer's exposure beyond policy limits, estimated the likely judgment, made a policy-limits settlement demand, and suggested he consult his own attorney.

The Committee divided the letter into two parts. All members agreed it is not unethical for a lawyer to write the opposite party notifying him of the claim and suggesting he contact his own attorney about his liability. As to the letter's other statements, the members differed, but the majority concluded the letter violates Canons 6 and 9 because the claimant's attorney was undertaking to advise the proposed defendant as to the law and the status he would have as a litigant. The vote on the violation was 5-3.

Currency note

This opinion was issued in 1956, 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 Treat this page as historical context, not current guidance.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 a claimant's lawyer write the unrepresented opposing party at all under this opinion?

A: Yes. The Committee unanimously agreed it is not unethical to write the opposite party to notify him of the claim and suggest he contact his own attorney.

Q: What crossed the line in the proposed letter?

A: A majority held that advising the proposed defendant about the law and the status he would have as a litigant (including the Stowers exposure and a settlement demand) violated Canons 6 and 9 (5-3).

Q: Was the Committee unanimous on the violation?

A: No. The members differed on the letter's other statements; the violation finding was by a 5-3 majority.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests) and Canon 9, the provision governing dealings with an opposing party, of the Canons of Ethics of the State Bar of Texas. The modern analogs are ABA Model Rule 4.3 (dealing with an unrepresented person) and Model Rule 4.1 (truthfulness in statements to others).

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• MR 4.1 (truthfulness in statements to others), as the modern analog
• Texas Canon 6 (conflicting interests)
• Texas Canon 9 (dealings with the opposite party)

Cases:

• Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex. Comm'n App. 1929), quoted in the proposed letter on an insurer's exposure beyond policy limits

See also

• 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
• TX Ethics Op. 139: Joint Letter Demanding a Physical Exam

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-130/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_130.pdf

Original opinion text

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

QUESTION PRESENTED

Is it unethical for an attorney to write the following type of letter to an opposing party, who apparently is not represented by legal counsel:

"Mr. John Doe
Bug Tussle, Texas

Re: Jane Roe vs John Doe

Dear Sir:

This is to advise you that we have been employed to represent Mrs. Jane Roe in her claim against you for personal injuries arising out of the accident on the premises of the Fictitious Drive Inn, here in Fort Worth, on June 10, 1955.

Please also be advised that Mrs. Roe and her husband, James Roe, have assigned to us a portion of their claim as attorney fees for representing them in this matter.

Your insurance policy provides that you must immediately notify your liability insurance company of any claim or demand or your policy will not be valid. The policy also provides that you must immediately give the company notice of any court papers or citations which may be served upon you or your policy will not be valid. You should therefore notify the company of this letter, and a carbon copy is attached v. which you may send to them. You should also notify the agent of the company, or its adjuster, very promptly in the event citation or other court papers are served upon you.

In the case of Stowers Furniture Company vs. American Indemnity Company, 15 S.W. (2nd) 544, the Supreme Court of Texas ruled that where a person has liability insurance and someone is injured and offers to settle for an amount within the limits of the policy and you request the insurance company to settle, the insurance company negligently fails to do so, then the insurance company must pay the entire amount of the judgment that might be rendered against you, even though it be above the amount of your policy.

You know that Mrs. Roe was seriously injured and has suffered rather large damages. My feeling is that the judgment, in the event it is necessary to try the case might run as high as $10,000.00. This would mean that any amount in excess of $5,000.00 could be collected off of your individual property.

In order to protect you and give you a chance to have your insurance company settle the case, without your running the risk of a judgment against you above the amount of your insurance, Mr and Mrs. Roe are now offering to settle this case for the sum of $5,000.00 provided the claim is settled promptly.

I suggest you contact some individual attorney who can represent your own personal interest and discuss this matter with him and call to his attention the cave of Stowers Furniture Company vs. American Indemnity, above mentioned.
If you desire to discuss this matter with me I shall be glad to do so, either in person or by long distance telephone.

Yours very truly,

Attorney."

18 Baylor L. Rev. 247 (1966)

CONFLICTING INTERESTS - ADVISING OPPOSITE PARTY
Although it is proper for the attorney of an injured client to write the tortfeasor notifying him of the claim against him and suggesting that he seek counsel, the attorney may not advise him as to the law and the status he would have as a litigant.

NEGOTIATIONS WITH OPPOSITE PARTY - ATTORNEY FOR INJURED PARTY
An attorney, representing a party who has been injured, may write the opposite party, who does not have an attorney, notifying him of a claim against him and suggesting that he seek counsel. However the letter should not undertake to advise the tortfeasor as to the Law and his status as litigant.

Canons 6, 9.

All members of the committee are agreed that it is not unethical for an attorney of a client to write a letter to the opposite party notifying him of the claim against him, and suggesting that he contact his attorney about the matter of his liability.

As to other statements contained in the letter, the members differ to some extent. However, the majority are of the opinion that the letter violates Canon 6 and 9 of the Canons of Ethics, State Bar of Texas, in that the attorney for the claimant is undertaking to advise the proposed defendant as to the law and the status he would have as a litigant. (5-3)

Tex. Comm. On Professional Ethics, Op. 130 (1956)