Can a defense lawyer send a represented plaintiff a copy of a letter to the plaintiff's attorney demanding a physical examination, even long after suit is filed?

Plain-English summary

Defense attorneys for insurance companies in personal-injury suits against their insureds followed a practice of sending plaintiffs copies of letters to plaintiffs' counsel asking that the plaintiff submit to examination by a physician of the defendant's choice, in each instance some time after suit had been filed. The inquiry asked whether this constituted unethical direct contact with the opposing party over counsel's head and without permission.

The Committee held it did not. It relied on Opinion 139, which had held there is no violation when defense counsel writes a letter addressed jointly to the plaintiff's attorney and the plaintiff demanding a medical examination. The Committee described this as an exception to the general rule of Canon 9 barring communication with an opposing party represented by counsel, and contrasted Opinions 57, 78, 163, and 170. It explained the reason for the exception: if the plaintiff refuses the demand, the refusal can be shown to the jury to discredit the claim, an effect a demand made only on the attorney might not have, citing 20 Texas L. Rev. 18.

The Committee found no unethical conduct by the defense attorneys, but stated that the opinion should be limited strictly to this fact situation and not construed generally to authorize contact with the opposing party. The vote was 7-0.

Currency note

This opinion was issued in 1959, 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 Treat this page as historical context, not current guidance.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 defense counsel copy a represented plaintiff on an exam demand?

A: Under this opinion, yes, on these facts. The Committee held that sending the plaintiff a copy of a letter to plaintiff's counsel requesting a physical examination did not violate Canon 9, even when sent well after suit was filed.

Q: Why is this an exception to the no-contact rule?

A: The Committee explained that a plaintiff's refusal of the demand can be shown to the jury to discredit the claim, an effect a demand made only on the attorney might not produce, citing 20 Texas L. Rev. 18.

Q: Does this opinion permit other contact with an opposing party?

A: No. The Committee expressly limited the opinion to this fact situation and said it should not be construed generally to authorize contact with the opposing party.

Background and rules framework

The opinion interprets former Texas Canon 9, which barred communication with a party represented by other counsel, recognizing a narrow exception for physical-examination demands. The modern analog is ABA Model Rule 4.2, on communication with a represented person.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with represented persons), as the modern analog
• Texas Canon 9 (former canon)

Other opinions cited:

• Texas Opinion 139: the controlling exception for examination demands
• Texas Opinions 57, 78, 163, 170: cited by contrast on Canon 9

See also

• TX Ethics Op. 235: Letter to a Represented Plaintiff
• TX Ethics Op. 233: Going Over the City Attorney
• TX Ethics Op. 297: Talking Settlement to Adjusters
• TX Ethics Op. 339: Client Contact With Adverse Party

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-229/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_229.pdf

Original opinion text

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

QUESTION PRESENTED

Defense attorneys for insurance companies in personal injury suits against their assureds have a practice of sending to plaintiffs copies of letters to plaintiffs' attorney in which they request that plaintiffs submit to examination by a physician of defendant's choice. In each instance this has been done quite some time after suit has been filed. Does this constitute an unethical direct contacting of the opposing parties over their attorney's head and without his permission?

18 Baylor L. Rev. 310 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - REQUESTING PHYSICAL EXAMINATIONS
Defense attorneys may properly send to plaintiffs copies of letters to plaintiffs' attorney requesting that plaintiff be examined by a physician of defendant's choice, even though such request is made quite some time after suit has been filed. However, approval of this practice should not be construed generally as authorizing contact with the opposing party.

Canon 9.

This committee in Opinion 139 held that there is no violation of the Canons of Ethics by a defendant's attorney writing a letter addressed jointly to the plaintiff's attorney and to the plaintiff demanding that the plaintiff submit himself to a physician of defendant's choice for a full and complete medical examination. Such opinion is an exception to the general rule of Canon 9 that prohibits communication in any way with an opposing party represented by counsel. Compare Opinions 57, 78, 163, and 170. The reason for the exception is that if the plaintiff refuses the demand for examination this can be brought out before the jury as tending to discredit plaintiff's claim, and a demand made only upon the attorney may not have such effect. See 20 Texas L. Rev. 18.

The inquiry does not involve any unethical conduct by the defense attorneys. However, this opinion should be limited strictly to this fact situation and not construed generally to authorize contact with the opposing party. (7-0.)

Tex. Comm. On Professional Ethics, Op. 229 (1959)