Before filing suit, can an injured client's lawyer write an unrepresented tortfeasor to offer settlement within policy limits, and warn of excess-judgment exposure?

Plain-English summary

The inquiry had two parts. First, whether a lawyer for a person injured in an automobile collision could write the tortfeasor, before any suit, to give notice of the lawyer's employment and offer to settle without litigation for the tortfeasor's liability policy limits, where the tortfeasor was not represented by counsel. Second, whether the lawyer could point out in that letter that if the offer were rejected and the rejection constituted negligence, the carrier could face a suit by the assured to recover sums paid under an excess judgment.

The Committee answered the first question in the negative, meaning the notice-and-offer letter would not violate the Canons (9-1). On the second question, the Committee held unanimously that the described conduct, adding the excess-judgment warning, would violate Canon 9 (10-0).

Currency note

This opinion was issued in 1954, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Communication with an unrepresented or opposing party is now governed by Texas Disciplinary Rules 4.02 and 4.03 and ABA Model Rules 4.2 and 4.3. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the lawyer write an unrepresented tortfeasor offering settlement within policy limits?

A: Yes. The Committee answered that question in the negative as to a violation, so the notice-and-offer letter is permitted (9-1).

Q: Could the letter also warn of an excess-judgment suit if the insurer negligently refused?

A: No. The Committee held unanimously that adding that warning would violate Canon 9 (10-0).

Q: Did it matter that no suit had been filed and the tortfeasor had no lawyer?

A: The first holding applied in exactly those circumstances, before suit and with the tortfeasor unrepresented as to the accident.

Background and rules framework

The opinion interprets former Texas Canon 9, governing a lawyer's dealings with the opposite party. The modern analogs are ABA Model Rule 4.3 (dealing with an unrepresented person) and Model Rule 4.2 (communication with a represented person), with Texas Disciplinary Rules 4.02 and 4.03 as the state counterparts.

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person), as the modern analog
• MR 4.2 (communication with person represented by counsel)
• Texas Canon 9 (negotiations with the opposite party)

See also

• TX Ethics Op. 101: Settlement Letter to an Unrepresented Adverse Party
• TX Ethics Op. 130: Claimant's Lawyer's Letter to a Tortfeasor
• TX Ethics Op. 99: Insurer's Counsel and Conflicting Interests

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-97/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_97.pdf

Original opinion text

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

QUESTION PRESENTED

Would it be a violation of the Canon of Ethics for an attorney representing a person injured in an automobile collision to write to the tort- feasor putting such party on notice of the attorneys' employment and offering to make compromise settlement of the claim without litigation for the amount of the tort feasor's liability insurance policy limits, where, at the time the offer is made no suit has been instituted and the tort-feasor is not represented by any counsel on account of the accident?
Would it be a violation of the Canon of Ethics for the attorney to point out in such letter that if such offer of compromise settlement is rejected by the tort-feasor's insurance company, and if such rejection constitutes negligence, it will expose said carrier to a possible suit by the assured to recover for any sums paid by the assured under a judgment for the injured party in excess of the policy limits?

18 Baylor L. Rev. 234 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - OFFERS OF COMPROMISE
An attorney representing a party injured in an automobile collision may write the tort-feasor, before suit is filed, and offer to compromise in his representative capacity, his client's claim without litigation for the amount of the tort-feasors' liability insurance policy limits even though the tort-feasor is not represented by counsel regarding the accident. However, the attorney cannot suggest that if the offer of compromise is negligently rejected by the tort-feasor's insurance carrier, the latter will be exposed to possible suit by the tort-feasor to recover any sums, in excess of the policy limits, paid by him under a judgment in favor of the injured party.

Canon 9.

The committee is of the opinion that Question No. 1 should be answered in the negative. (9-1)
The members of the committee are unanimously of the opinion that the conduct described in Question No. 2 would violate Canon No. 9. (10-0)

Tex. Comm. On Professional Ethics, Op. 97 (1954)