Can a plaintiff's lawyer send a settlement demand directly to a represented defendant if he copies the defense lawyer and insurer?

Plain-English summary

The inquiry concerned automobile-collision litigation in which the plaintiff's counsel wished to communicate directly with the defendant, with copies to the defendant's lawyer and the defendant's insurance carrier, offering to settle for a certain sum and advising that if the insurer refused to settle within policy limits, it must assume responsibility for a verdict in excess of those limits.

The Committee concluded that the described conduct would violate Canon 9, which prohibits a member from communicating in any way with a party represented by counsel (9-1).

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. Communication with a person represented by counsel is now governed by Texas Disciplinary Rule 4.02 and ABA Model Rule 4.2. 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 Treat this page as historical context, not current guidance.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 the plaintiff's lawyer write the represented defendant directly if he copied defense counsel?

A: No. The Committee held that the direct communication would violate Canon 9, even with copies to the defense lawyer and insurer (9-1).

Q: Why did copying the defense lawyer not cure the problem?

A: The opinion read Canon 9 as prohibiting a member from communicating in any way with a party represented by counsel, so the direct contact itself was the violation.

Background and rules framework

The opinion interprets former Texas Canon 9, the no-contact rule, applied to a settlement letter sent directly to a represented defendant. The modern analog is ABA Model Rule 4.2 (communication with a person represented by counsel) and Texas Disciplinary Rule 4.02.

Citations and references

Rules of Professional Conduct:

• MR 4.2 (communication with person represented by counsel), as the modern analog
• Texas Canon 9 (negotiations with the opposite party)

See also

• TX Ethics Op. 97: Compromise Letter to an Unrepresented Tortfeasor
• TX Ethics Op. 101: Settlement Letter to an Unrepresented Adverse Party
• TX Ethics Op. 99: Insurer's Counsel and Conflicting Interests

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-78/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_78.pdf

Original opinion text

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

QUESTION PRESENTED

In litigation growing out of automobile collision, would it be a violation of the Canons of Ethics for the plaintiff's counsel to communicate directly with defendant, with copy to the attorney who represents defendant and defendant's insurance carrier, offering to settle for a certain sum and advising that if the insurance company refuses to settle within policy limits, it must assume responsibility for a verdict in excess of policy limits?

18 Baylor L. Rev. 229 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY
Plaintiff's attorney, in litigation growing out of an automobile collision, may not communicate directly with defendant, sending a copy of the letter to defendant's attorney and defendant's insurance carrier, offering to settle for a certain sum and advising that if the insurance company refuses to settle within policy limits, it must assume responsibility for a verdict in excess of policy limits.

Canon 9.

The committee is of the opinion that the above described conduct would be a violation of Canon 9, which prohibits a member from communicating in any way with a party represented by counsel. (9-1)

Tex. Comm. On Professional Ethics, Op. 78 (1953)