Can a plaintiff's attorney plead, in the original petition, the plaintiff's prior policy-limits settlement offers and ask the judge to warn defense counsel to demand settlement?

Plain-English summary

The inquiry asked whether inserting a particular paragraph in a Plaintiff's Original Petition violated the Canons. The paragraph, expressly said to be for the court's knowledge rather than to be read to the jury, recited that the plaintiff had at all times been willing to settle within the defendant's policy limits, had given the insurer a full breakdown of the medical bills and reports and offered to settle for $4,250.65 on June 26, 1958, and that the adjuster refused to acknowledge the offer or attempt to settle. It asked the court to instruct defense counsel that, for his protection, he must demand in writing that the carrier settle within policy limits, warning that otherwise the defendant would lack insurance protection for any award over those limits.

The Committee held the insertion of that paragraph constituted a violation of the Canons by the plaintiff's attorney who filed the petition. Three members, the majority, were of the opinion that it violated Canon 19 and also Canons 7 and 9; two concurring members felt it violated only Canon 19. The vote was 5-3.

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 Treat this page as historical context, not current guidance.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 plaintiff's lawyer put settlement-demand statements "for the court" in the petition?

A: Under this opinion, no. The Committee held that inserting such a paragraph in the original petition violates the Canons.

Q: Was a policy-limits warning to the defense proper in a pleading?

A: No. The Committee held it improper for the plaintiff's attorney to ask the judge to instruct defense counsel to demand a within-policy-limits settlement, finding the pleading violated the Canons.

Q: Which Canons did the committee find violated?

A: A majority of three members found violations of Canon 19 and also Canons 7 and 9, while two concurring members thought only Canon 19 was violated; the vote was 5-3.

Background and rules framework

The opinion interprets former Texas Canons 7, 9, and 19, on candor and fairness and on dealings with the opposite party, as applied to settlement statements and a policy-limits warning inserted in a pleading. The modern analogs are ABA Model Rule 3.3 (candor toward the tribunal) and Model Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal), as the modern analog
• MR 4.2 (communication with a represented person), as the modern analog
• Texas Canons 7, 9, and 19 (former canons)

See also

• TX Ethics Op. 214: Withholding an Affirmative Defense
• TX Ethics Op. 233: Negotiating Over the City Attorney's Head
• TX Ethics Op. 235: Letter to a Represented Plaintiff

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-213/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_213.pdf

Original opinion text

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

QUESTION PRESENTED

Does the insertion of the following paragraph in a Plaintiff's Original Petition constitute a violation of the Canons of Ethics:

"That the following paragraph is not to be read to the jury but is for the knowledge of the Court in that Plaintiff has been at all times previous to the filing of this lawsuit, willing to settle her lawsuit for an amount within the policy limits of Defendant, [ ]. That Plaintiff has contacted the insurance carrier, [ ] Insurance Company, of Defendant, , and offered to settle, after giving said insurance company a full and complete breakdown of the medical bills and medical reports on Plaintiff's wife, for the sum of $4,250.65. That Plaintiff made this offer on June 26, 1958, to Mr. [ ], [ ] Insurance Company, [ ] Texas. That said adjustor for defendant's insurance company refused to acknowledge this offer or attempt to settle the case in any manner. Plaintiff requests the court to instruct the defendant's attorney, representing Mr. [ ], that for his protection he must make demand in writing upon his insurance carrier to settle the case within the policy limits to protect himself for the amounts that will be, or could be awarded over the policy limits of his insurance policy. That should he not make such demand and the jury award an amount over said policy limits, that then defendant would not have the protection of his insurance policy for said excess amounts. Plaintiff has at all times been willing to settle said lawsuit and would still be willing to settle said lawsuit within the policy limits should the insurance carrier representing Mr. contact Plaintiff's attorney within a reasonable period of time after the filing of this lawsuit.?"

18 Baylor L. Rev. 299 (1966)

CANDOR AND FAIRNESS - COMMUNICATING WITH OPPOSITE PARTY- OFFERS TO SETTLE - PLEADINGS
In a personal injury suit it is improper for plaintiff's attorney to include in his original petition statements addressed to the court advising the judge of plaintiff's prior unsuccessful attempts to settle his claim with defendant's insurance company within the policy limits, and his continued willingness to so settle, and requesting the judge to instruct defendant's attorney that for defendant's protection against liability for any damages that might be awarded in excess of his policy limits he should make demand in writing upon the insurance company to settle within such policy limits.

Canons 7, 9, 19.

It is the opinion of the committee that the insertion in Plaintiff's Original Petition of the paragraph contained in the inquiry constitutes a violation of the Canons of Ethics by the plaintiff's attorney filing such petition. Three of the members, representing the majority, are of the opinion that such action violates Canon 19 and also Canons 7 and 9. Two of the members, concurring with the majority, feel that it only violates Canon 19. (5-3.)

Tex. Comm. On Professional Ethics, Op. 213 (1958)