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ETHICS OPINION 406-1952
NUMBER 406 1952
Question. On January 29, 1951, attorney A, representing a corporation, forwards to a steamship company a commercial claim accompanied by a. file of supporting documents. On March 16, 1951, the steamship company acknowledges receipt of the claim and accompanying papers, at the same time advising that the matter has been referred to their insurance carrier and suggesting that if further information concerning the matter be required “that you write direct to Blank insurance company.” Subsequent to this, nothing but routine correspondence ensues.
On January 9, 1952, the steamship company writes a letter to attorney A. advising that they are declining all liability concerning the claim. However, they do not return attorney A’s file. On January 11, 1952, attorney A writes to the steamship company as follows: “I have your letter of January 9, 1952. Please return my entire file as soon as possible.”
January 15, 1952, attorney A serves a summons and complaint upon the steamship company.
January 17, 1952, an employee of the above-mentioned insurance company telephones attorney A requesting an extension which is granted orally and, at the same time, advises that attorney A’s file will be returned as soon as possible.
January 22, 1952, law firm XYZ serves a notice of appearance, answer and demand for bill of particulars on attorney A on behalf of defendant steamship company. January 22, 1952, attorney. A writes to Blank insurance company, sending carbon copies to attorneys XYZ and the steamship company as follows:
I note that although I requested the return of my file from ______________ steamship company on January 11th it has still not been received at this office. I am now in receipt for a demand for a bill of particulars from Messrs. XYZ and cannot do anything with this until this file is returned.
Please see that it is sent by return mail.
On January 24, attorney A receives the original of his letter of January 22 to the Blank insurance company in the mail with the following notation in ink at the bottom: “All papers in hands of XYZ (defendant’s attorneys). We have telephoned them to return your papers. Understand they write you today.”
It should be noted that attorney A has never consented that his file be forwarded to the defendant’s attorneys and moreover the Blank insurance company had promised the immediate return of this file on January 17.
In the same mail attorney A receives the following letter, dated January 23, 1952, from Messrs. XYZ, attorneys for the steamship company:
We have received a copy of your most improper letter of January 22, 1952, addressed to Blank insurance company, with a copy to __________ steamship company. It appears from, the text of your letter that you are aware that we have appeared on behalf of _________ steamship company, the sole defendant in the above action, and, accordingly, we call your attention to Article 9 of the Canon of Ethics.
We hereby require that you forthwith write to Blank insurance company and to__________ steamship company apologizing for your improper action.
This letter is signed by a partner in the law firm of XYZ. The letter indicates at the bottom that carbon copies were sent to Blank insurance company and to __________ steamship company.
Up to January 28, 1952, attorney A’s tile has not been returned to him, nor has he heard anything further in connection with it.
I shall appreciate it if your Committee will render an opinion from a standpoint of professional ethics upon all aspects of the above set of facts, including specifically; all actions of attorney A; the failure of those concerned, including Messrs. XYZ, to return attorney A’s file.
Answer. We do not agree with the implication of XYZ’s letter that A’s action constituted a violation of Canon 9, which provides; “A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel.”
A sent the file to the steamship company, which said it had referred the matter to the insurance company, with whom A was directed to communicate. It does not appear that when A wrote the letter of January 22, he knew that XYZ had the file, if such was the fact.
A’s action in seeking a return of his file from the carrier, its underwriter, and the attorney—whoever might have it—is not the kind of conduct Canon 9 is directed against. The “subject of controversy” in the suit was the claim itself, not the whereabouts of and return of the claim file.
As to the “failure of those concerned” to return the file, the question of professional ethics does not arise with respect to the insurance company or the carrier, since they are not lawyers.
If XYZ had the file, as stated by the insurance company, their failure to return the file promptly upon A’s demand was, on the facts stated, arbitrary and unjustified.