Can a plaintiff's lawyer plead allegations about the defendant's liability insurance and its refusal to settle in the original petition?

Plain-English summary

The inquiry asked whether a plaintiff's attorney could include in the original petition allegations that the defendant carried liability insurance, that the insurer had refused to enter serious settlement negotiations or settle within policy limits despite the plaintiff's full disclosure, and that the plaintiff had no alternative but to sue to recover damages the insurer owed.

The Committee said it was not its function to pass on substantive and procedural law, but assumed for the opinion that the allegations had no proper place in the pleadings and would be stricken on proper exceptions; that assumption did not resolve the ethical question. Three members took the view that control of pleadings is for the court, that the Canons do not specifically address the subject, and that there is therefore no Canon violation even if the pleadings are improper.

The majority concluded that including such improper allegations in the original petition is a clear violation of Canon 19, which requires that a lawyer's conduct before the court and with other lawyers be characterized by candor and fairness (citing Opinion 213). One member further found a clear violation of Canon 9, reasoning that the obvious purpose of the allegations was to communicate with the defendant in a manner not permitted outside the pleadings, calculated to mislead the defendant, alienate him from his insurance company, and reduce his cooperation with the insurer and its chosen counsel. The vote was 5-3.

Currency note

This opinion was issued in 1968, 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 Treat this page as historical context, not current guidance.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 petition allege that the defendant has liability insurance and that the insurer refused to settle?

A: The majority said no. It held that including such improper allegations in the original petition is a clear violation of Canon 19's candor-and-fairness requirement.

Q: Was the Committee unanimous?

A: No. The vote was 5-3. Three members believed control of pleadings is a matter for the court and that the Canons were not violated even if the pleadings were improper.

Q: Did any member see a separate violation?

A: Yes. One member further found a Canon 9 violation, viewing the allegations as an attempt to communicate with the defendant in a way not permitted outside the pleadings and calculated to mislead him and alienate him from his insurer.

Background and rules framework

The opinion interprets former Texas Canon 19 (candor and fairness before the court and with other lawyers) and, in the single-member view, Canon 9 (communications with a party). The modern analogs are ABA Model Rule 3.4 (fairness to opposing party and counsel) and Model Rule 4.2 (communication with represented persons).

Citations and references

Rules of Professional Conduct:

• MR 3.4 (fairness to opposing party and counsel), as the modern analog
• MR 4.2 (communication with represented persons), as the modern analog
• Texas Canons 19 and 9 (former canons)

Other opinions cited:

• Texas Opinion 213 (August 1958)
• Texas Opinions 57, 78, 97, 130, 163, 170, and 201 (single-member Canon 9 view)

See also

• TX Ethics Op. 339: Permitting a Client to Contact a Represented Adverse Party
• TX Ethics Op. 335: Communicating With an Unrepresented Opposing Party
• TX Ethics Op. 358: Copying the Opposing Party on Letters to Opposing Counsel

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-337/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_337.pdf

Original opinion text

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

QUESTION PRESENTED

It is unethical for Plaintiff's attorney to include in his Original Petition allegations of the following nature:
At the time of the aforesaid accident Defendant had in full force and effect a policy of liability insurance.
Despite the fact that it has been over a year since the accident occurred and despite the fact that Plaintiff has made full disclosure, medically and otherwise, to Defendant's liability insurance company, such insurance company has steadfastly refused and still refuses to enter into serious settlement negotiations with Plaintiff or to make appropriate efforts within its policy limits to settle for the injuries sustained by Plaintiff, and therefore this injured Plaintiff, has no alternative but to bring this suit against the Defendant in an effort to recover the damages which have been experienced and which are owed by Defendant's insurance company.
Defendant had in force a policy of liability insurance which should be responsible for the damages sustained by Plaintiff, and despite the fact that Plaintiff has notified the insurance company of his claim and injuries, Plaintiff has not received any indication from said insurance company that it will voluntarily settle or compromise Plaintiff's claim for his damages and injuries; accordingly, in order to protect himself with said insurance company, it has been necessary to bring this lawsuit.

23 Baylor L. Rev. 870 (1972)

CANDOR AND FAIRNESS - COMMUNICATING WITH OPPOSITE PARTY - REFERENCE TO INSURANCE SETTLEMENT NEGOTIATIONS AND RELATED MATTERS IN PLAINTIFF'S PETITION
It is unethical for an attorney to include in Plaintiff's Original Petition allegations with respect to Defendant's liability insurance, settlement negotiations and related matters.

Canons 19, 9.

It is not the function of this Committee to pass upon questions of substantive and procedural law, but for purposes of this Opinion, we assume that all of such allegations have no proper place in the pleadings and would be stricken by the Court pursuant to proper exceptions. This assumption, however, does not necessarily resolve the ethical questions.

Three members of the Committee feel that the control of pleadings is a matter for the Court, that the Canons do not specifically deal with this subject and that therefore there is no violation of the Canons even though the pleadings may be improper.

The majority of the Committee, however, is of the opinion that the inclusion of such improper allegations in Plaintiff's Original Petition constitutes a clear violation of Canon 19, which requires that the conduct of a member before the Court and with other members should be characterized by candor and fairness. See Opinion 213 (August, 1958).

One member of the Committee further feels that Canon 9 is also clearly violated by allegations such as those set forth in Questions 2 and 3. It is his view that the obvious purpose and intent of such allegations in Plaintiff's Original Petition is to communicate with the Defendant in a manner which would not be permitted outside the pleadings (see Opinions 57, 78, 97, 130, 163, 170 and 201), and that such communications are calculated to mislead the Defendant, alienate him against his insurance company and reduce his cooperation with his insurance company and the counsel selected by it. (5-3.)

Tex. Comm. On Professional Ethics, Op. 337 (1968)