One in a series of ethics opinions from The Florida Bar’s Professional Ethics Committee. This opinion was released on March 7, 2003.
The question
Can a lawyer give a second opinion to a person who is represented by counsel on how the person’s current lawyer is handling the case or give information on the services the lawyer may provide?
The situation
The Professional Ethics Committee said it was aware that there have been many inquiries on the Ethics Hot line regarding a lawyer’s obligations when a person who is represented by counsel in a matter asks for a “second opinion” on their case. Clients sometimes would like another lawyer’s opinion on how the lawyer currently representing them is handling the case or on a particular point of law. Clients may also be interested in obtaining a different lawyer in their matter and would like to discuss the case and what services the other lawyer can provide without terminating their current representation first.
Lawyers are concerned that such communications may violate Rule 4-4.2, addressing communications with persons represented by counsel, or may otherwise violate the Rules of Professional Conduct.
Rule 4-4.2, Rules Regulating The Florida Bar, provides as follows:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.
The prohibition is limited to those circumstances where the lawyer is “representing a client.” Therefore, the ban on contact does not extend to a lawyer who is approached by a represented person who merely wants a second opinion, or who may be interested in hiring the lawyer in the matter, because the lawyer does not represent anyone in the matter other than the person seeking the second opinion.
Other states analyzing this issue have reached the same conclusion.
Some states that have examined this issue have concluded that clients should be able to consult with as many attorneys as they wish, and to choose which attorney they would like to represent them on a given matter. A client’s ability to choose a new lawyer would be impaired if lawyers were prohibited from discussing, at the prospective client’s request, aspects of the case, including what services the consulted lawyer could provide.
The ruling
The committee therefore concluded that a lawyer may provide a second opinion to a person who is represented by counsel at the person’s request. In providing the second opinion, the lawyer must give competent advice, and in doing so should carefully consider any limitations with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer should scrupulously avoid improperly soliciting the person. The lawyer may discuss what services the lawyer would be able to provide if the represented person requests not merely a second opinion, but also information about the lawyer’s availability and qualifications. Whether or not particular communications between the lawyer and the represented person might be considered tortuous interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.