Can a defense lawyer write directly to a represented plaintiff, copying the plaintiff's attorney, to request that the plaintiff submit to a physical examination?

Plain-English summary

During the plaintiff's deposition, defense counsel asked whether the plaintiff would consent to an examination by a doctor of the defendant's choosing. The plaintiff said the decision rested with his lawyer, and the plaintiff's lawyer stated that consent would neither be given nor denied. Before trial, defense counsel wrote a letter to the plaintiff, with a copy to the plaintiff's counsel, again requesting the examination and asking for an immediate reply. The inquiry asked whether that letter violated Texas Canon 9.

The Committee concluded it did not. It found the question substantially the same as the one answered by Opinion 139 and controlled by that opinion, so the described conduct was not unethical. The Committee noted that Opinion 139 appeared to rest on decisions such as Texas and N. O. Ry. v. Rooks, 292 S.W. 536 (Comm'n App. 1937).

Some committee members, while agreeing that Opinion 139 controlled, expressed the view that this exception to the broad language of Canon 9 was unwise and that the better practice was to conduct all communications through counsel rather than directly with the opposing party. The ruling was 9-0.

Currency note

This opinion was issued in 1961, 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 Treat this page as historical context, not current guidance.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 defense counsel write directly to a represented plaintiff?

A: Under this opinion, yes, on these facts. The Committee held that writing the plaintiff a letter with a copy to the plaintiff's attorney, dealing only with the request for a physical examination, did not violate Canon 9.

Q: What authority did the Committee rely on?

A: It found the question substantially the same as Opinion 139 and controlled by it, and noted that Opinion 139 appeared to rest on decisions such as Texas and N. O. Ry. v. Rooks, 292 S.W. 536 (Comm'n App. 1937).

Q: Was the Committee unanimous in its reasoning?

A: The vote was 9-0, but some members, while agreeing that Opinion 139 controlled, said the exception was unwise and that the better practice was to communicate only through opposing counsel.

Background and rules framework

The opinion interprets former Texas Canon 9, which governed a lawyer's communications with a party represented by other counsel. The modern analog is ABA Model Rule 4.2, on communication with a person represented by counsel.

Citations and references

Rules of Professional Conduct:

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

Cases:

• Texas and N. O. Ry. v. Rooks, 292 S.W. 536 (Comm'n App. 1937), cited as a basis for Opinion 139

Other opinions cited:

• Texas Opinion 139: controlling opinion on the same question

See also

• TX Ethics Op. 233: Direct Contact With a City Council
• TX Ethics Op. 297: Talking Settlement to Adjusters
• TX Ethics Op. 339: Client Contact With Adverse Party
• TX Ethics Op. 335: Letter to Unrepresented Party

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-235/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_235.pdf

Original opinion text

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

QUESTION PRESENTED

During the course of taking plaintiff's deposition, defense counsel inquired if plaintiff would consent to examination by a doctor chosen by defendant. Plaintiff replied, "I have to leave that up with the lawyer." Plaintiff's lawyer then stated in the deposition that consent would neither be given nor be denied. The plaintiff thereafter affirmed in the deposition that the decision rested with the plaintiff's lawyer.

Subsequently and prior to trial, but without further attempt to secure permission, defense counsel wrote a letter to plaintiff with copy to plaintiff's counsel. The letter summarized this discussion about permission and said "We hereby again request . . . a physical examination by a medical doctor" selected by defendant, and requested an immediate reply.

Did defense counsel violate Texas Canon 9?

18 Baylor L. Rev. 315 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - DEMANDING PHYSICAL EXAMINATIONS
Defense counsel does not violate Canon 9 by writing a letter to plaintiff with a copy to plaintiff's attorney, when the letter deals only with defendant's request that plaintiff submit to a physical examination by a doctor of defendant's choice.

Canon 9.

This question is substantially the same as that answered by Opinion 139, and is controlled by that opinion. The described conduct of defense counsel is not unethical. Opinion 139 seems to be based upon decisions such as Texas and N. O. Ry. vs. Rooks, 292 S. W. 536 (Comm'n. App., 1937).

Some committee members, while agreeing that the question is controlled by Opinion 139, feel that this exception to the broad language of Canon 9 is not wise and that the better standard and practice is to conduct all communications through counsel and not directly with the opposing party. (9-0.)

Tex. Comm. On Professional Ethics, Op. 235 (1961)