June 1960

NEGOTIATIONS WITH OPPOSITE PARTY – ATTORNEY FOR INJURED PARTY – An attorney, representing a party who has been injured, may write the opposing party who is not represented by an attorney, notifying him of a claim and suggesting that he seek counsel. However, the letter should not undertake to advise the tortfeasor as to the law and his status as a litigant.

Canon 9.


Attorney for plaintiff wrote the defendants a letter advising defendants of the claim against them, advising them as to their duty to their insurance company under their policy, and further advising them of the possibility of an adverse verdict greater than their policy coverage. The attorney further pointed out that "if you write them and urge them to settle this claim to the full extent of the policy limits and if they do not do it then it may be possible that they can be held legally responsible for any amount recovered over and above your policy limits if the recovery is by final judgment." At various points throughout the letter the attorney cautioned the parties not to consider any part of the letter as legal advice to them, and urging them to seek counsel of their own. The attorney sent a copy to defendants’ insurance company and requested that defendants give the letter to their adjuster.


Even assuming that the addressee was not represented by counsel (although the letter suggests the attorney knew the name of the insurance company) the letter is a violation of Canon 9, which prohibits communication with a party represented by counsel, and further prohibits giving advice as to the law to a party not represented by counsel. The letter gives legal advice despite the frequent assertions by the writer that it is not to be so construed. The letter goes beyond proper settlement negotiations. It is so much a matter of common knowledge, at least among attorneys, that public liability policies provide for the insurer to furnish counsel that the writer of this letter is almost in the position of being charged with the knowledge that the insured had counsel. The committee does not pass upon the question of whether or not this circumstance, in the absence of a showing that the writer knew the name of such counsel, would prohibit the attorney from writing to an insured direct. See Texas Opinions 97, 101 and 130. Insofar as Texas Opinion 101 is in conflict with the instant opinion, Texas Opinion 101 is hereby modified. (6-1)