OPINION 130
June 1956

CONFLICTING INTEREST-- ADVISING OPPOSITE PARTY -- Although it is proper for the attorney of an injured client to write the tortfeasor notifying him of the claim against him and suggesting that he seek counsel, the attorney may not advise him as to the law and the status he would have as a litigant.

NEGOTIATIONS WITH OPPOSITE PARTY-- ATTORNEY FOR INJURED PARTY-- An attorney, representing a party who has been injured, may write the opposite party, who does not have an attorney, notifying him of a claim against him and suggesting that he seek counsel. However, the letter should not undertake to advise the tortfeasor as to the Law and his status as litigant.

Canons 6, 9.

Question

Is it unethical for an attorney to write the following type of letter to an opposing party, who apparently is not represented by legal counsel:

"Mr. John Doe Bug Tussle, Texas

Re: Jane Roe vs. John Doe

"Dear Sir:

"This is to advise you that we have been employed to represent Mrs. Jane Roe in her claim against you for personal injuries arising out of the accident on the premises of the Fictitious Drive Inn, here in Fort Worth, on June 10, 1955.

"Please also be advised that Mrs. Roe and her husband, James Roe, have assigned to us a portion of their claim as attorney fees for representing them in this matter.

"Your insurance policy provides that you must immediately notify your liability insurance company of any claim or demand or your policy wi1l not be valid. The policy also provides that you must immediately give the company notice of any court papers or citations which may be served upon you or your policy will not be valid. You should therefore notify the company of this letter, and a carbon copy is attached which you may send to them. You should also notify the agent of the company, or its adjuster, very promptly in the event citation or other court papers are served upon you.

"In the case if Stowers Furniture Company vs. American Indemnity Company, 15 S.W. (2nd) 544, the Supreme Court of Texas ruled that where a person has liability insurance and someone is injured and offers to settle for an amount within the limits of the policy and you request the insurance company to settle, the insurance company negligently fails to do so, then the insurance company must pay the entire amount of the judgment that might be rendered against you, even though it be above the amount of your policy.

"You know that Mrs. Roe was seriously injured and has suffered rather large damages. My feeling is that the judgment, in the event it is necessary to try the case, might run as high as $10,000.00. This would mean that any amount in excess of $5,000.00 could be collected off of your individual property.

"In order to protect you and give you a chance to have your insurance company settle the case, without your running the risk of a judgment against you above the amount of your insurance, Mr. and Mrs. Roes are now offering to settle this case for the sum of $5,000.00 provided the claim is settled promptly.

"I suggest you contact some individual attorney who can represent your own personal interest and discuss this matter with him and call to his attention the case of Stowers Furniture Company vs. American Indemnity, above mentioned.

"If you desire to discuss this matter with me I shall be glad to do so, either in person or by long distance telephone.

"Yours very truly,

"Attorney."

Opinion

All members of the committee are agreed that it is not unethical for an attorney of a client to write a letter to the opposite party notifying him of the claim against him, and suggesting that he contact his attorney about the matter of his liability.

As to other statements contained in the letter, the members differ to some extent. However, the majority are of the opinion that the letter violates Canon  6 and [Canon] 9 of the Canons of Ethics, State Bar of Texas, in that the attorney for the claimant is undertaking to advise the proposed defendant as to the law and the status he would have as a litigant. (5-3)