Opinion 229

18 Baylor L. Rev. 310 (1966)

NEGOTIATIONS WITH OPPOSITE PARTY - REQUESTING PHYSICAL EXAMINATIONS
Defense attorneys may properly send to plaintiffs copies of letters to plaintiffs= attorney requesting that plaintiff be examined by a physician of defendant's choice, even though such request is made quite some time after suit has been filed. However, approval of this practice should not be construed generally as authorizing contact with the opposing party.

Canon 9.

This committee in Opinion 139 held that there is no violation of the Canons of Ethics by a defendant's attorney writing a letter addressed jointly to the plaintiff's attorney and to the plaintiff demanding that the plaintiff submit himself to a physician of defendant's choice for a full and complete medical examination. Such opinion is an exception to the general rule of Canon 9 that prohibits communication in any way with an opposing party represented by counsel. Compare Opinions 57, 78, 163, and 170. The reason for the exception is that if the plaintiff refuses the demand for examination this can be brought out before the jury as tending to discredit plaintiff's claim, and a demand made only upon the attorney may not have such effect. See 20 Texas L. Rev. 18.

The inquiry does not involve any unethical conduct by the defense attorneys. However, this opinion should be limited strictly to this fact situation and not construed generally to authorize contact with the opposing party. (7-0.)