NEGOTIATIONS WITH OPPOSITE PARTYREQUESTING PHYSICAL EXAMINATIONSDefense attorneys may properly send to plaintiffs copies of letters to plaintiffs attorney requesting that plaintiff be examined by a physician of defendant's choice, even though such request is made quite some time after the suit has been filed. However, approval of this practice should not be construed generally as authorizing contact with the opposite party.
Defense attorneys for insurance companies in personal injury suits against their assureds have a practice of sending to plaintiffs copies of letters to plaintiffs attorney in which they request that plaintiffs submit to examination by a physician of defendant's choice. In each instance this has been done quite some time after suit has been filed. Does this constitute an unethical direct contacting of the opposing parties over their attorney's head and without his permission?
This committee in Opinion 139 held that there is no violation of the Canons of Ethics by a defendant's attorney writing a letter addressed jointly to the plaintiff's attorney and to the plaintiff demanding that the plaintiff submit himself to a physician of defendant's choice for a full and complete medical examination. Such opinion is an exception to the general rule of Canon 9 that prohibits communication in any way with an opposing party represented by counsel. Compare Opinions 57, 78, 163, and 170. The reason for the exception is that if the plaintiff refuses the demand for examination this can be brought out before the jury as tending to discredit plaintiff's claim, and a demand made only upon the attorney may not have such effect. See 20 Texas L. Rev. 18.
The inquiry does not involve any unethical conduct by the defense attorneys. However, this opinion should be limited strictly to this fact situation and not construed generally to authorize contact with the opposing party. (7-0.)