OPINION 213
August 1958

CANDOR AND FAIRNESS - COMMUNICATING WITH OPPOSITE PARTY-OFFERS TO SETTLE-PLEADINGS - In a personal injury suit it is improper for plaintiff's attorney to include in his original petition statements addressed to the court advising the judge of plaintiff's prior unsuccessful attempts to settle his claim with defendant's insurance company within the policy limits, and his continued willingness to so settle, and requesting the judge to instruct defendant's attorney that for defendant's protection against liability for any damages that might be awarded in excess of his policy limits he should make demand in writing upon the insurance company to settle within such policy limits.

Canons 79, 19.

Question

Does the insertion of the following  paragraph in a Plaintiff's Original Petition constitute a violation of the Canons of Ethics:

"That the following paragraph is not to be read to the jury but is for the knowledge of the Court in that Plaintiff has been at all times previous to the filing of this lawsuit, willing to settle her lawsuit for an amount within the policy limits of Defendant, _____.  That Plaintiff has contacted the insurance carrier, _______ Insurance Company, of Defendant, _____, and offered to settle, after giving said insurance company a full and complete breakdown of the medical bills and medical reports on Plaintiff's wife, for the sum of $4,250.65.  That Plaintiff made this offer on June 26, 1958, to Mr. _____, _____ Insurance Company, _____, _____, Texas.  That said adjuster for defendant's insurance company refused to acknowledge this offer or attempt to settle the case in any manner.  Plaintiff requests the court to instruct the defendant's attorney, representing Mr. _____, that for this protection he must make demand in writing upon his insurance carrier to settle the case within the policy limits to protect himself for the amounts that will be, or could be awarded over the policy limits of his insurance policy.  That should he not make such demand and the jury award an amount over said policy limits, that then defendant would not have the protection of his insurance policy for said excess amounts.  Plaintiff has at all times been willing to settle said lawsuit and would still be willing to settle said lawsuit within the policy limits, should the insurance carrier representing Mr. _____ contact Plaintiff's attorney within a reasonable period of time after the filing of this lawsuit"?

Opinion

It is the opinion of the Committee that the insertion in Plaintiff's Original Petition of the paragraph contained in the inquiry constitutes a violation of the Canons of Ethics by the plaintiff's attorney filing such petition.  Three of the members, representing the majority, are of the opinion that such action violates Canon 19 and also Canons 7 and  9.  Two of the members, concurring with the majority, feel that it only violates Canon 19.  (5-3)