Can a lawyer demanding damages from the other driver also send her, under his son's name, an undisclosed solicitation to buy insurance from the son's agency?

Plain-English summary

The inquiry described an attorney who, on his own letterhead and over his own signature, demanded damages on behalf of a client from the other party to an automobile collision and suggested she consult her insurance carrier. The same attorney's son ran an insurance agency. While the son was away, the attorney, on the agency's letterhead, signed his son's name to a letter to the same woman recommending that she take out a liability policy with one of the agency's companies. Neither letter disclosed that the agency's owner was the attorney's son.

The committee was evenly divided. Five members thought the conduct violated the spirit, if not the letter, of Canon 6 (adverse influences and conflicting interests). The other five did not think it violated any Canon. All ten members agreed the conduct showed poor judgment and discretion. The vote was 5-5.

Currency note

This opinion was issued in 1951, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; conflicts of interest and a lawyer's dealings with an unrepresented opposing party are now addressed by ABA Model Rules 1.7 and 4.3. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the committee find a Canon violation?

A: It did not reach a violation. The committee split 5-5, so no majority found a Canon 6 violation, though all ten members agreed the conduct showed poor judgment and discretion.

Q: What troubled the members who saw a problem?

A: Those five members viewed the lawyer's pursuit of a damages claim against the woman, combined with an undisclosed solicitation to sell her insurance through his son's agency, as offending the spirit of Canon 6 on adverse influences and conflicting interests.

Background and rules framework

The opinion interprets former Texas Canon 6 (adverse influences and conflicting interests), applied to a lawyer who pressed a claim against a party while also, through an undisclosed family insurance agency, soliciting her business. The modern analogs are ABA Model Rule 1.7 (conflicts of interest) and Model Rule 4.3 (dealing with an unrepresented person).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest), as the modern analog
• MR 4.3 (dealing with an unrepresented person), as the modern analog
• Texas Canon 6 (adverse influences and conflicting interests)

See also

• TX Ethics Op. 57: Joint Settlement Letter to a Represented Party
• TX Ethics Op. 43: One Lawyer Defending Both Drivers in a Collision

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-34/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_34.pdf

Original opinion text

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

QUESTION PRESENTED

On October 25, 1950, on his own letterhead and over his own signature, a practicing attorney made demand for damages, on behalf of a client, against the other party to an automobile collision, and suggested that such other party consult her insurance carrier about the accident, if she had not already done so.

A son of this same attorney had an insurance agency which was conducted in another building in the same city, and on the date the letter was written the son was out of the city on a visit to his grandmother in anticipation of being drafted into service. During his absence, this attorney for and on behalf of the insurance agency, and on the letterhead of the insurance agency, signed his son's name to a letter addressed to this same lady upon whom he was making demand for damages, pointing out the advantages for carrying automobile liability insurance and recommending that she take out such a policy with one of the companies represented by his agency. Neither the attorney's letter nor the letter written on behalf of the insurance agency disclosed that the owner of the insurance agency was a son of the attorney.

Does the conduct outlined above violate any of the Canons of Ethics of the State Bar of Texas?

18 Baylor L. Rev. 210 (1966)

CONFLICTING INTERESTS - LETTERS TO OPPOSING PARTY
An attorney who on behalf of a client writes a letter to the other party to a collision demanding damages and suggesting that she consult her insurance carrier, and who later signs his son's name to another letter addressed to the same party recommending that she take out a policy with one of the companies represented by the son's insurance agency, shows poor judgment and discretion.

Canon 6.

The committee was evenly divided on this question. Five members were of the opinion that such conduct violated the spirit, if not the letter, of Canon 6 which deals with the subject of Adverse Influences and Conflicting Interests. The other five members did not feel that such conduct violated any of the Canons, but they were all of the opinion that such conduct showed poor judgment and discretion. (5-5)

Tex. Comm. On Professional Ethics, Op. 34 (1951)