OPINION 139
December 1956

NEGOTIATIONS WITH OPPOSITE PARTY-- DEMANDING PHYSICAL EXAMINATIONS -- Writing plaintiff and his attorney jointly and demanding that plaintiff submit to a physical examination does not violate the spirit of the prohibition against negotiations with the opposite party. However, extreme caution should be exercised when dealing with the other party represented by counsel in other matters.

Canon 9.

Question

Defendant’s attorney wrote a letter addressed jointly to plaintiff's attorney and to plaintiff making demand that plaintiff submit himself to a doctor of defendant's choice for a full and complete medical examination. Query: Is it a violation of the Canons of Ethics for defendant's attorney to send such joint letter to plaintiff's attorney and to plaintiff, and particularly is such a joint letter in violation of Texas Canon of Ethics No. 9 which provides: "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel."

Opinion

The committee is of the opinion that such a joint letter does not violate any Canon of Ethics and especially does not violate the spirit of Texas Canon of Ethics No. 9.

It is pointed out that said Canon No. 9 was headed: "Negotiations with Opposite Party," and that such a joint letter was not considered by the committee to constitute a "Negotiation."

It is also pointed out that physical examination of a plaintiff is not a matter of right in our state courts but that defendant can make demand upon plaintiff for such an examination and that if plaintiff refuses such refusal can be brought out before the jury as a circumstance tending to discredit plaintiff's claim as to the extent of his injuries, and that although demand on plaintiff’s attorney is a demand upon plaintiff that plaintiff's attorney might fail to communicate such demand to plaintiff and that plaintiff could then testify that he knew of no such demand, that if he had known of same he would have gladly complied with it, etc., and that as a practical matter the effect of the failure to submit to plaintiff for such examination might thereby be lost.

It was the consensus of the committee members that this opinion should be strictly confined to the facts of this particular case, and that extreme caution should be exercised in sanctioning any communication between counsel and opposing party represented by an attorney. (8-1)