OPINION 337
March 1968

CANDOR AND FAIRNESS COMMUNICATING WITH OPPOSITE PARTY REFERENCE TO INSURANCE SETTLEMENT NEGOTIATIONS AND RELATED MATTERS IN PLAINTIFF'S PETITION It is unethical for an attorney to include in Plaintiff's Original Petition allegations with respect to Defendant's liability insurance, settlement negotiations and related matters.

Canons 19, 9.

Question

It is unethical for Plaintiff's attorney to include in his Original Petition allegations of the following nature:

1. At the time of the aforesaid accident Defendant had in full force and effect a policy of liability insurance.

2. Despite the fact that it has been over a year since the accident occurred and despite the fact that Plaintiff has made full disclosure, medically and otherwise, to Defendant's liability insurance company, such insurance company has steadfastly refused and still refuses to enter into serious settlement negotiations with Plaintiff or to make appropriate efforts within its policy limits to settle for the injuries sustained by Plaintiff, and therefore this injured Plaintiff, has no alternative but to bring this suit against the Defendant in an effort to recover the damages which have been experienced and which are owed by Defendant's insurance company.

3. Defendant had in force a policy of liability insurance which should be responsible for the damages sustained by Plaintiff, and despite the fact that Plaintiff has notified the insurance company of his claim and injuries, Plaintiff has not received any indication from said insurance company that it will voluntarily settle or compromise Plaintiff's claim for his damages and injuries; accordingly, in order to protect himself with said insurance company, it has been necessary to bring this lawsuit.

Opinion

It is not the function of this Committee to pass upon questions of substantive and procedural law, but for purposes of this Opinion, we assume that all of such allegations have no proper place in the pleadings and would be stricken by the Court pursuant to proper exceptions. This assumption, however, does not necessarily resolve the ethical questions.

Three members of the Committee feel that the control of pleadings is a matter for the Court, that the Canons do not specifically deal with this subject and that therefore there is no violation of the Canons even though the pleadings may be improper.

The majority of the Committee, however, is of the opinion that the inclusion of such improper allegations in Plaintiff's Original Petition constitutes a clear violation of Canon 19, which requires that the conduct of a member before the Court and with other members should be characterized by candor and fairness. See Opinion 213 (August, 1958).

One member of the Committee further feels that Canon 9 is also clearly violated by allegations such as those set forth in Questions 2 and 3. It is his view that the obvious purpose and intent of such allegations in Plaintiff's Original Petition is to communicate with the Defendant in a manner which would not be permitted outside the pleadings (see Opinions 57, 78. 97, 130, 163, 170 and 201), and that such communications are calculated to mislead the Defendant, alienate him against his insurance company and reduce his cooperation with his insurance company and the counsel selected by it. (5-3.)