Hello everyone and welcome to this Ethics Alert which will discuss the lawyer’s ethical duties and responsibilities when a represented person contacts the lawyer to obtain a second opinion. Although a lawyer is permitted to render a second opinion to a represented person who initiates the contact with the lawyer, there are important ethical and practical issues which should be considered before the lawyer agrees to do so.
A threshold issue is whether a second opinion would be an improper communication with a person represented by counsel. In 2002, the ABA added a sentence to paragraph 4 of the Comment to Model Rule 4.2 which makes it clear that lawyers can provide second opinions if the lawyer is not representing another individual in the same matter. Model Rule 4.2 has been adopted in substantial form by most jurisdictions, including Florida. The Comment states:
(4) This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.
Florida Bar Ethics Opinion 02-5 (March 3, 2013, rev. August 24, 2011) discusses types of information a lawyer can give to an individual who is seeking a second opinion as well as potential solicitation. The opinion states that, a lawyer may provide information about the lawyer’s availability and qualifications when contacted by an individual and if the information is requested.
The opinion concludes:
… 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 tortious interference with an existing lawyer-client relationship is a legal question, outside the scope of an ethics opinion.
As is stated in the above ethics opinion, before giving a second opinion, the lawyer should consider whether he or she can competently render the opinion. In order to be competent, the lawyer might need to review the client’s file, which may only be available through the client’s current lawyer.
South Carolina Bar Opinion 97-07 (1997) states:
…A lawyer may discuss a pending legal matter with a client who is represented by another attorney. If the client is seeking a second opinion based on a subjective opinion rendered by the client’s attorney, the lawyer should carefully consider the basis of the advice of the client’s attorney and may be required to consult with the client’s attorney in order to give competent legal advice. If so, the lawyer should advise the client accordingly prior to giving any opinion or advice.
A lawyer who provides a second opinion is also creating an attorney/client relationship and attorney/client confidentiality would apply. The scope of confidentiality is extremely broad and includes all information related to the representation, including the fact that the client came to the lawyer for a consultation; therefore, the lawyer would not be able to contact the person’s current lawyer, unless the client consents or there is an exception to the confidentiality rule.
Oregon State Bar Opinion 2005-81 (Revised 2014) states:
A lawyer may provide a second opinion to a potential client regarding the quality of work done by another lawyer. The lawyer may not inform the other lawyer of the client’s request unless the client consents or another exception to the duty of confidentiality is applicable.
Bottom line: It is not unethical for a lawyer to provide a second opinion; however, there are important ethical and practical issues that a lawyer should consider before agreeing to do so.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19, N., Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670