Can a plaintiff's lawyer write the represented defendant directly to urge him to push his insurer to settle within policy limits?

Plain-English summary

The inquiry described a damage suit where the plaintiff's claim against Mr. Y exceeded Y's "5 & 10" policy limits, and Y had already answered through the insurer's attorney. The plaintiff's lawyer then wrote Y directly, telling him he could demand that his insurer settle within the policy amount and could make the insurer pay any judgment over $5,000 if it failed to settle, offering to settle for $5,000, inviting Y to his office to be told the law of the case, and noting Y could check with any other lawyer to confirm he was telling the truth.

The Committee concluded that writing such a letter would violate Canon 9 (8-1), which provides that a member should not in any way communicate upon the subject in controversy with a party represented by counsel, should not negotiate or compromise the matter with the party, and should deal only with the party's counsel.

Currency note

This opinion was issued in 1957, 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 Treat this page as historical context, not current guidance.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: Can a lawyer write the opposing party directly if he thinks the party's insurer should settle?

A: The Committee concluded that writing the represented defendant directly to urge a settlement demand violates Canon 9, which requires dealing only with the party's counsel.

Q: Did offering to let the defendant verify the advice with another lawyer cure the problem?

A: No. The Committee found the letter violated Canon 9 because it communicated with a represented party about the controversy, regardless of the invitation to check with other counsel.

Background and rules framework

The opinion interprets former Texas Canon 9, which barred a lawyer from communicating about the subject in controversy with a party represented by counsel. 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 (former canon on communicating with a represented party)

See also

• TX Ethics Op. 170: Copying a Represented Opposing Party on a Settlement Letter
• TX Ethics Op. 201: Plaintiff's Letter Advising an Unrepresented Defendant
• TX Ethics Op. 179: Insurance Defense Counsel's Duties to the Insured

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-163/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_163.pdf

Original opinion text

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

QUESTION PRESENTED

In a damage suit arising out of a collision with a vehicle owned by Mr. Y, Attorney John Doe is representing Mr. X. Mr. Y has a "5 & 10" insurance policy. The suit filed by Mr. X against Mr. Y seeks more damages than is provided by the policy. After suit has been filed by Attorney John Doe, and after Mr. Y has filed an answer through an attorney representing the insurance company, Attorney John Doe writes Mr. Y, informing him that he can generally demand that Mr. Y's insurance company settle the case for the amount of the policy, and if they fail to make settlement, then Mr. Y can make the insurance company pay for the judgment against Mr. Y, over and above $5,000, if it is recovered in a lawsuit.

In the letter, Attorney John Doe offers to settle the case for the sum of $5,000, and invites Mr. Y to come by his office and talk to him about the matter, and he, Attorney John Doe, will tell Mr. Y about the law of the case, and advises Mr. Y that he can check with any other lawyer of his own choosing to find out whether or not he, Attorney John Doe, is telling the truth.

Under the above circumstances, is the writing of such a letter to Attorney John Doe a violation of Canon 6, Canon 9, or any other Canon of Ethics of the State Bar of Texas?

18 Baylor L. Rev. 265 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - OFFERS TO SETTLE
Where a suit for damages arising out of an automobile accident has been filed and the opposite party has answered through an attorney representing the insurance company, it is improper for the attorney employed by the plaintiff to write the opposite party suggesting that he can demand his insurance company to settle the case within his collision policy limits, and that should the company fail to settle, he can make it pay for any amount over the policy limits which the plaintiff may recover from him.

Canon 9.

The committee is of the opinion that the writing of such a letter by Attorney John Doe to Y would be a violation of Canon 9 of the Canons of Ethics of the State Bar of Texas, which provides that a member should not in any way communicate upon the subject in controversy with a party represented by counsel and should not undertake to negotiate or compromise the matter with the party, but should deal only with the counsel. (8-1)

Tex. Comm. On Professional Ethics, Op. 163 (1957)