If opposing counsel won't relay a settlement offer, can a lawyer send a joint letter to that counsel and the opposing client about a possible compromise?

Plain-English summary

The inquiry asked whether, where the adverse attorney had refused to consult his client about a settlement, the other attorney could send a joint letter to the adverse attorney and his client stating that a compromise was possible and should be discussed.

The Committee was of the opinion that such a joint letter would directly violate Canon 9, which prohibits a member from in any way communicating with a party represented by counsel and enjoins him to deal only with that counsel. One member was further of the opinion that the joint letter violated the portion of Canon 7 stating that efforts, direct or indirect, which in any way encroach upon the practice of another member are unworthy of members of the State Bar. The vote was 9-0.

Currency note

This opinion was issued in 1953, 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; communication with a represented person is now addressed by ABA Model Rule 4.2. Treat this page as historical context, not current guidance.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 a lawyer copy the opposing client on a settlement letter?

A: No. The Committee found that including the represented client on the letter directly violated Canon 9's no-contact rule (9-0).

Q: Did opposing counsel's refusal to discuss settlement justify contacting the client?

A: No. Even where the adverse attorney had refused to consult his client, the Committee held the lawyer still had to deal only with that counsel.

Background and rules framework

The opinion interprets former Texas Canon 9 (the no-contact rule), with one member also citing Canon 7 (encroaching on another member's practice), applied to a settlement letter addressed jointly to opposing counsel and the represented client. The modern analog is ABA Model Rule 4.2 (communication with a person represented by counsel).

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with a represented person), as the modern analog
• Texas Canon 9 (communicating with a represented party)
• Texas Canon 7 (cited by one member)

See also

• TX Ethics Op. 78: Contacting a Represented Defendant
• TX Ethics Op. 97: Compromise Letter to a Tortfeasor
• TX Ethics Op. 88: Brief to Judge, No Copy to Opponent

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-57/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_57.pdf

Original opinion text

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

QUESTION PRESENTED

Is it a violation of the Canons of Ethics, where the adverse attorney has refused to consult his client about a settlement, for the other attorney to send a joint letter to the adverse attorney and his client stating that a compromise was possible and should be discussed?

18 Baylor L. Rev. 220 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY
An attorney may not send a joint letter to the adverse attorney and his client stating that a compromise is possible and should be discussed even where the adverse attorney has refused to consult his client about a settlement.

Canon 9.

The committee is of the opinion that such joint letter would be in direct violation of Canon 9, which prohibits a member from in any way communicating with a party represented by counsel, and which enjoins him to deal only with his counsel.

One member is further of the opinion that such joint letter violates the portion of Canon 7 which reads: "Efforts direct or indirect, which in any way encroach upon the practice of another member are unworthy of those who shall be members of the State Bar." (9-0)

Tex. Comm. On Professional Ethics, Op. 57 (1953)