Can a plaintiff's lawyer write directly to an unrepresented opposing party about a prospective claim, and what may the letter say?

Plain-English summary

The inquiry presented a letter from a plaintiff's lawyer to an unrepresented prospective defendant about a traffic accident. The letter expressed no hard feelings, observed that the defendant's insurance company was the real target of the claim, predicted that suit would be filed only if a fair settlement could not be reached, and urged the recipient to consult his own attorney rather than one of the insurance company's choosing, noting that most lawyers would not charge for such a consultation.

The Committee quoted Canon 9, which covers two subjects: communications with a party represented by counsel and communications with a party not represented by counsel. The prohibition on communicating with a represented party about the subject of the controversy is absolute (with a single exception for a demand for physical examination, where the law requires direct communication with the party). There is no absolute prohibition on communicating with an unrepresented party, and such communications are permitted so long as the lawyer does not mislead the party or advise him on the law or his status as a litigant.

Applying that standard, the Committee held the letter went too far: it sought to advise the prospective defendant on legal matters and was misleading as to the real party against whom the claim would be made. Canon 9 was therefore violated. The vote was 9-0.

Currency note

This opinion was issued in 1967, 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 Treat this page as historical context, not current guidance.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 directly to an unrepresented opposing party about a claim?

A: The Committee said yes, provided the lawyer does not mislead the party and does not advise him on the law or his status as a litigant.

Q: Why did this particular letter violate Canon 9?

A: The Committee found the letter sought to advise the prospective defendant on legal matters and was misleading about the real party against whom the claim would be made.

Q: Does Canon 9 ever allow contacting a represented party directly?

A: The Committee described the prohibition on contacting a represented party about the controversy as absolute, with a single exception for a demand for physical examination, where the law requires direct communication with the party.

Background and rules framework

The opinion interprets former Texas Canon 9 (negotiations with the opposite party), distinguishing represented from unrepresented parties. The modern analogs are ABA Model Rule 4.3 (dealing with an unrepresented person) and Model Rule 4.2 (communication with represented persons).

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• MR 4.2 (communication with represented persons), as the modern analog
• Texas Canon 9 (former canon)

Other opinions cited:

• Texas Opinions 57, 78, 163, and 170 (represented-party prohibition)
• Texas Opinions 139, 229, and 233 (physical-examination exception)
• Texas Opinions 97, 130, and 201, modifying Opinion 101 (unrepresented-party communications)

See also

• TX Ethics Op. 339: Permitting a Client to Contact a Represented Adverse Party
• TX Ethics Op. 342: Interviewing Employees of an Adverse Corporate Party
• TX Ethics Op. 355: Advising a Represented Opposing Party at a Deposition

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-335/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_335.pdf

Original opinion text

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

QUESTION PRESENTED

Does the following letter violate the Canons of Ethics?

"Dear Mr. Defendant:

"Mr. and Mrs. Plaintiff have employed this law firm to investigate the accident which occurred on October 25, 1965, in which you were involved.

"As you know, as a result of this accident, the Plaintiffs received injuries which may well be permanent. I realize that what happened was unintentional on your part and Mr. and Mrs. Plaintiff recognize this also. I want you to know that there are no hard feelings toward you on the part of Mr. and Mrs. Plaintiff and I am sure you have none toward them.

"I know that you, like myself, have been paying insurance premiums for many years for the express purpose of seeing that whoever might be injured as a result of a traffic mishap have their expenses and losses paid, and this is done with a minimum of inconvenience to ourselves and to the injured party.

"You may be assured that every effort will be made to amicably secure the payment of the medical bills and losses by settlement, however, it may become necessary, in this instance for Mr. and Mrs. Plaintiff to make a claim for their injuries through our Courts.

"Although you may be named as Defendant, it is your insurance company against whom the claim is actually made. The law requires that you be named as the party against whom suit is brought. If suit is filed naming you, I hope you will not feel any personal affront.

"Please remember that a suit will be filed only if we are unable to settle this claim fairly. A suit will certainly entail as much distress and inconvenience to Mr. and Mrs. Plaintiff as to you, and no suit will be brought unless our medical evidence is such that we feel it would convince a jury of 12 reasonable people that our clients' injuries are sufficiently serious to justify a larger award than that for which the insurance company has offered to settle.

"I strongly urge that, should you have questions or doubts regarding this matter, you consult an attorney of your own rather than one of the insurance company's choosing. Most lawyers would not charge for such consultation or advice.

Yours truly,
John Doe Attorney

23 Baylor L. Rev. 867 (1972)

COMMUNICATIONS WITH OPPOSITE PARTY
An attorney may ethically communicate with an opposing party who is not represented by counsel with respect to prospective litigation provided he does not mislead the opposing party in any way or undertake to advise him as to the law or his status as a litigant.

Canon 9

This inquiry probably has been sufficiently answered by prior opinions of this Committee but we write further in the hope that this question and similar questions may be fully resolved.

Canon 9 provides as follows:

"Negotiations with opposite party: A member should not in any way communicate upon the subject of controversy with a party represented by counsel. He should not undertake to negotiate or compromise the matter with the party, but should deal only with his counsel. It is incumbent upon the member most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he shall not undertake to advise him as to the law."

This Canon covers two subjectsΧ(1) communications with a party represented by counsel, and (2) communications with a party not represented by counsel. The prohibition against communications with a party who is represented by counsel is absolute and we have repeatedly held that an attorney may not ethically communicate with an opposite party represented by counsel in any respect concerning the subject matter of the controversy (Opinions 57, 78,163 and 170), except on the single subject of a demand for physical examination where the law requires direct communication with the party (Opinions 139, 229 and 233). There is, however, no absolute prohibition against communications with a party who is not represented by counsel and such communications are permitted so long as the communication does not mislead the party nor advise him as to the law or his status as a litigant. See Opinions 97, 130 and 201, modifying Opinion 101.

In the instant case, the letter goes too far. It seeks to advise the prospective defendant upon legal matters and it is misleading as to the real party against whom claim will be made. Canon 9 is violated. (9-0.)

Tex. Comm. On Professional Ethics, Op. 335 (1967)