Can a defendant's lawyer send a letter jointly to the plaintiff and the plaintiff's attorney demanding a physical examination?

Plain-English summary

A defendant's attorney wrote a letter addressed jointly to the plaintiff's attorney and the plaintiff, demanding that the plaintiff submit to a full medical examination by a doctor of the defendant's choice. The inquiry asked whether sending such a joint letter violated the Canons, particularly Canon 9, which provided that "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel."

The Committee concluded the joint letter does not violate any canon and especially does not violate the spirit of Canon 9 (8-1). It observed that Canon 9 was headed "Negotiations with Opposite Party," and the joint letter was not a "negotiation." The Committee noted that a physical examination is not a matter of right in Texas courts, but the defendant may demand one, and a plaintiff's refusal could be brought before the jury to discredit his injury claim; addressing the demand only to the plaintiff's attorney risked the attorney's not relaying it, after which the plaintiff could testify he never knew of the demand. The Committee stressed the opinion is strictly confined to its facts and that extreme caution should be exercised before sanctioning any communication between counsel and an opposing party represented by an attorney.

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 Treat this page as historical context, not current guidance.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 the defense lawyer address the exam demand jointly to the plaintiff and his lawyer?

A: On these facts, yes. The Committee found the joint letter did not violate the spirit of Canon 9 because demanding an examination was not a "negotiation" with the opposite party (8-1).

Q: Why did the Committee think addressing the plaintiff directly mattered here?

A: It noted that a demand sent only to the plaintiff's attorney might not be relayed, letting the plaintiff later testify he never knew of it, which could undercut the consequences of refusing the examination.

Q: How broadly does the opinion apply?

A: Narrowly. The Committee confined it strictly to its facts and urged extreme caution before sanctioning any direct communication with a represented opposing party.

Background and rules framework

The opinion interprets former Texas Canon 9 (communication with a party represented by counsel, headed "Negotiations with Opposite Party"). The modern analog is ABA Model Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person), as the modern analog
• Texas Canon 9 (communication with a represented party)

See also

• TX Ethics Op. 170: Copying a Represented Party
• TX Ethics Op. 163: Writing a Represented Defendant
• TX Ethics Op. 144: Investigators and Guilty Pleas

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-139/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_139.pdf

Original opinion text

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

QUESTION PRESENTED

Defendant's attorney wrote a letter addressed jointly to plaintiff's attorney and to plaintiff making demand that plaintiff submit himself to a doctor of defendant's choice for a full and complete medical examination. Query: Is it a violation of the Canons of Ethics for defendant's attorney to send such joint letter to plaintiff's attorney and to plaintiff, and particularly is such a joint letter a violation of Texas Canon of Ethics No. 9 which provides: "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel."

18 Baylor L. Rev. 253 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - DEMANDING PHYSICAL EXAMINATIONS
Writing plaintiff and his attorney jointly and demanding that plaintiff submit to a physical examination does not violate the spirit of the prohibition against negotiations with the opposite party. However, extreme caution should be exercised when dealing with the other party represented by counsel in other matters.

Canon 9.

The committee is of the opinion that such a joint letter does not violate any Canon of Ethics and especially does not violate the spirit of Texas Canon of Ethics No. 9.

It is pointed out that said Canon No. 9 was headed: "Negotiations with Opposite Party," and that such a joint letter was not considered by the committee to constitute a "Negotiation."

It is also pointed out that physical examination of a plaintiff is not a matter of right in our state courts but that defendant can make demand upon plaintiff for such an examination and that if plaintiff refuses such refusal can be brought out before the jury as a circumstance tending to discredit plaintiff's claim as to the extent of his injuries, and that although demand on plaintiff's attorney is a demand upon plaintiff that plaintiff's attorney might fail to communicate such demand to plaintiff and that plaintiff could then testify that he knew of no such demand, that if he had known of same he would have gladly complied with it, etc., and that as a practical matter the effect of the failure to submit plaintiff for such examination might thereby be lost.

It was the consensus of the committee members that this opinion should be strictly confined to the facts of this particular case, and that extreme caution should be exercised in sanctioning any communication between counsel and opposing party represented by an attorney. (8-1)

Tex. Comm. On Professional Ethics, Op. 139 (1956)