Can a plaintiff's lawyer copy the defendant directly on a settlement-offer letter sent to the defendant's attorney?

Plain-English summary

The inquiry asked whether a plaintiff's attorney acts unethically by sending a copy of a settlement-offer letter directly to the defendant, where the letter is addressed to the defendant's attorney of record (retained by the defendant's liability insurer) and a carbon copy goes by registered mail to the defendant himself. The sample letter offered to settle within the defendant's policy limits and asked the defendant to advise whether he recommended the settlement.

The Committee concluded that writing such a letter violates Canon 9 (9-0). It explained that Canon 9 provides a member shall not in any way communicate upon the subject of 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 that party's counsel. Sending a carbon copy of the letter to the defendant is a communication with a represented party and an effort to influence the settlement negotiations by dealing directly with the defendant for that purpose.

Currency note

This opinion was issued in 1958, 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 Treat this page as historical context, not current guidance.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 copy the opposing party directly on a letter to opposing counsel?

A: The Committee concluded that sending a carbon copy of a settlement-offer letter directly to a represented defendant violates Canon 9, because it communicates with a represented party about the controversy.

Q: Did it matter that the copy was an offer within the defendant's policy limits?

A: The Committee treated the direct copy as an effort to influence settlement by dealing directly with the represented party, and found it violated Canon 9 regardless of the offer's terms.

Q: Who should the plaintiff's lawyer deal with instead?

A: The Committee stated that under Canon 9 the lawyer should deal only with the represented party's counsel, not with the party.

Background and rules framework

The opinion interprets former Texas Canon 9, which barred a lawyer from communicating about the subject of controversy with a party represented by counsel. The modern analog is ABA Model Rule 4.2 (communication with a person represented by counsel), which prohibits communicating about the subject of the representation with a represented person absent that lawyer's consent.

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. 201: Plaintiff's Letter Advising an Unrepresented Defendant
• TX Ethics Op. 179: Insurance Defense Counsel's Duties to the Insured
• TX Ethics Op. 187: County Attorney's Law Partner Defending a Criminal Case

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-170/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_170.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 for the plaintiff to send a copy of the following type of letter to the defendant, the letter being addressed to the attorney of record for the defendant and the attorney for the defendant being employed by the defendant's liability insurance carrier:

"Mr. Martin Muzzlewit
Attorney at Law
Sputnik, Texas

Re: No. 1, District Court,
Satellite County, Texas
John Doe vs. Richard Roe

Dear Mr. Muzzlewit:
John Doe, plaintiff in the above entitled and numbered cause, hereby offers to settle the same for the sum of $4900.00.

A carbon copy of this letter is also sent by registered mail to Richard Roe, the principal defendant, with the request that he advise me whether or not he recommends this settlement be made, which is within his policy limits.

Thanking you for the prompt attention you will give this matter, and with kindest personal regards, I am

Yours very truly,

John Blackstone
Attorney at Law

cc: Mr. Richard Roe
Route 10, Box 100
Sputnik, Texas"

18 Baylor L. Rev. 269 (1966)

NEGOTIATION WITH OPPOSITE PARTY - OFFERS TO SETTLE
An attorney representing an injured party may not send a copy of a letter to the defendant, the original being sent to defendant's lawyer employed by his insurance carrier, containing an offer to settle the injured party's claim within the defendant's insurance policy limits. Communication in any way with an opposite party who is represented by counsel regarding the subject of controversy is improper.

Canon 9.

The committee is of the opinion that the writing of such a letter is a violation of Canon No. 9 of the Canons of Ethics of the State Bar of Texas, which provides that a member shall not in any way communicate upon the subject of 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 his counsel. The sending of a carbon copy of the letter to the defendant is a communication with a party represented by counsel, and is an effort to influence the negotiations for settlement by dealing directly with the defendant for that purpose. (9-0)

Tex. Comm. On Professional Ethics, Op. 170 (1958)