Can a Tennessee lawyer send a pre-suit demand letter, with a copy of a proposed complaint, or an excess-liability letter to an insurer, before the adverse party is represented?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The Board addressed two kinds of pre-suit letters. A "demand letter" states the facts and legal theories supporting a claim and encloses a proposed complaint, telling the adverse party that the complaint will be filed if the party does not wish to compromise. An "excess letter" goes to the adverse party's insurance carrier, with a copy to the insured, stating that the claimant has offered to settle within the policy limits, that there is a substantial probability of a verdict exceeding those limits if the matter is litigated, and suggesting a possible conflict of interest between insurer and insured.

The Board concluded there is no impropriety in sending either letter to an adverse party not represented by counsel, or to adverse counsel. It is not improper to give notices or demands required by statute, ordinance, or rule and to cite the authority for them, to state the claim's facts and the damages or injuries claimed, to state that appropriate civil action will follow if the claim is not settled, to state legal theories or conclusions of law, to cite laws or rules, or to enclose a proposed complaint. This conclusion rests on the premise that the letters are sent in good faith to persuade settlement, consistent with the law's preference for resolving civil disputes through compromise rather than litigation.

The opinion draws a firm line at threats of criminal prosecution or harassment: it is highly unethical to state or imply that criminal action is contemplated to gain a civil advantage, or to state that any action is contemplated to harass, intimidate, or injure another person.

Common questions

Q: Can I send a demand letter with a proposed complaint attached before filing suit?

A: Yes. The opinion states "there is no impropriety in an attorney writing such a 'demand letter'... to an adverse party not represented by counsel or to adverse counsel," and "it is not improper to enclose a proposed complaint."

Q: Can I tell an insurer that a verdict could exceed the policy limits?

A: Yes, if sent in good faith. The opinion describes the "excess letter" to the insurance carrier, noting the settlement offer within policy limits and "a substantial probability of a verdict in excess of the policy limits," as proper conduct alongside the demand letter.

Q: Can I mention that I will pursue criminal charges if the civil claim is not paid?

A: No. The opinion states "it is highly unethical and improper to state or imply to either the adverse party or adverse counsel that criminal action is contemplated to obtain an advantage in a civil matter," citing DR 7-105(A)'s prohibition on threatening criminal charges to obtain a civil advantage.

Q: Can I give the unrepresented adverse party any legal advice in the letter?

A: No, beyond advising the person to get a lawyer. The opinion cites DR 7-104(A)(2), which "prohibited [from] giving advice to a person who is not represented by a lawyer other than the advice to secure counsel."

Background and rules framework

The opinion applied Disciplinary Rule 7-105(A) (prohibiting threats of criminal prosecution to gain civil advantage), Disciplinary Rule 7-102(A)(1) (prohibiting action intended to harass, intimidate, or injure), and Disciplinary Rule 7-104(A)(2) (limiting advice to unrepresented adverse parties) of the Tennessee Code of Professional Responsibility. The modern correlates are Model Rule 4.3 (dealing with unrepresented persons) and Model Rule 3.4 (fairness to opposing party and counsel), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 7-105(A) (threatening criminal prosecution to obtain a civil advantage), DR 7-102(A)(1) (harassment or intimidation), and DR 7-104(A)(2) (advice to an unrepresented adverse party), Tennessee Code of Professional Responsibility
• Model Rule 4.3 (dealing with unrepresented persons) and Model Rule 3.4 (fairness to opposing party and counsel), modern correlates

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-22

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

81-F-22 - Demand letters to adverse parties prior to suit

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-22

Inquiries have been made concerning the propriety of an attorney sending "demand letters" and copies of "excess letters" to adverse parties before suit is filed and before the adverse party is represented by counsel.

The proposed "demand letter" states the facts of the case and legal theories supporting the claim and a copy of a complaint proposed to be filed is enclosed stating that if the adverse party does not wish to compromise the claims, the enclosed complaint will be filed.

The proposed "excess letter" is to the insurance carrier with a copy to the adverse party, insured, stating that the claimant has offered to settle the claim within the policy limits. The letter also states that there is a substantial probability of a verdict in excess of the policy limits in the event of litigation and suggests that there may be a conflict of interest between the insurer and insured.

The Ethics Committee is of the opinion that there is no impropriety in an attorney writing such a "demand letter" or "excess letter" to an adverse party not represented by counsel or to adverse counsel. There is no impropriety in giving such notices or demands as required by statute, ordinance or rule and citing the authority. The claims for damages or injuries may be stated along with the alleged facts on which the claims are made. There is no impropriety in stating that appropriate civil action will be taken in event the claims are not settled. It is not improper to state legal theories, conclusions of law or to make reference to or cite laws, statutes, rules or similar authorities. It is not improper to enclose a proposed complaint.

This opinion is based on the premise that the actions contemplated are done in good faith in order to persuade the settlement of civil matters in furtherance of the principle that the law favors, the informal resolution of controversies through compromise and settlement rather than through litigation.

It is highly unethical and improper to state or imply to either the adverse party or adverse counsel that criminal action is contemplated to obtain an advantage in a civil matter or to state that any action is contemplated in order to harass, intimidate or injure another. An attorney is prohibited from threatening to present criminal charges to obtain a civil advantage. DR 7-105(A). An attorney is prohibited from taking action which is intended to harass, intimidate or injure another. DR 7-102(A)(1). An attorney is prohibited from giving advice to a person who is not represented by a lawyer other than the advice to secure counsel. DR 7-104(A)(2).

This 20th day of November, 1981.

ETHICS COMMITTEE:

Jack C. Raulston

A. B. Goddard

John T. Henniss

APPROVED AND ADOPTED BY THE BOARD