Can a lawyer discuss a client's case with another lawyer outside the firm without breaching confidentiality?

Plain-English summary

The committee addressed the ethics of a lawyer consulting another lawyer outside the firm for help on a client's matter, a practice it took care not to discourage: the opinion "is not intended and should not be interpreted to discourage the practice of consulting between lawyers." It favored keeping the inquiry general where possible, because "a consultation that is general in nature and does not involve disclosure of client information does not implicate Rule 1.6 and does not require client consent." Hypothetical or anonymous consultations were favored.

When a consultation did require disclosing client information, the committee read Rule 1.6(a), informed by its comment, to give the consulting lawyer implied authority to disclose information when she reasonably believed doing so would further the representation by obtaining the consulted lawyer's expertise. That authority was limited: it did not extend to privileged information or to information that would prejudice or embarrass the client without informed consent, and the consulting lawyer had to "take care not to breach his duty of confidentiality under Rule 1.6." The committee also directed the consulting lawyer to avoid consulting a lawyer likely to be, or to become, counsel for the adverse party.

On the consulted lawyer's side, the committee held that "the consulted lawyer does not have a client-lawyer relationship with the consulting lawyer's client by virtue of the consultation alone." It declined to extend Formal Opinion 90-358 to impose an automatic Rule 1.6 duty, reasoning that doing so would discourage lawyers from sharing knowledge. The consulted lawyer assumed a confidentiality duty only where she expressly or impliedly agreed or where law imposed one; but she had to stay mindful of her own Rule 1.7 loyalty duty, since "counseling against a client's interests is the antithesis of the client-lawyer relationship." Where she had agreed to preserve confidentiality, Rule 1.7(b) could bar her from a representation materially limited by that obligation absent her own client's consent.

Currency note

This opinion was issued in 1998, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. 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 a lawyer ask another lawyer for help on a client's case?

A: Yes. The opinion encouraged lawyer-to-lawyer consultation and favored keeping it general or hypothetical so that no client information was disclosed and no client consent was needed.

Q: What could the consulting lawyer reveal?

A: Only what she reasonably believed would further the representation. The opinion's implied authorization under Rule 1.6 did not extend to privileged information or to information that would prejudice or embarrass the client without informed consent.

Q: Did the consulted lawyer take on duties to the other lawyer's client?

A: Not automatically. The opinion concluded there was no client-lawyer relationship from the consultation alone; the consulted lawyer owed confidentiality only if she agreed or law imposed it, but she had to watch her own Rule 1.7 loyalty obligations.

Background and rules framework

The opinion interpreted Rule 1.6 (confidentiality), centering on the implied-authorization principle of Rule 1.6(a), and Rule 1.7 (conflicts and loyalty), with reference to the competence and diligence duties (Rules 1.1, 1.3) that motivate consultation and to Rules 1.9 and 1.10 on the consulted lawyer's side. It distinguished Formal Opinion 90-358. Because the opinion predated the 2002 revisions, it applied these provisions as they then stood.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6, including Rule 1.6(a) (confidentiality; impliedly authorized disclosure)
• ABA Model Rule 1.7, including Rule 1.7(b) (conflicts; materially limited representation)
• ABA Model Rule 1.1 (competence; reason to consult for expertise)

Other opinions cited:

• ABA Formal Op. 90-358 (protection of information imparted by a prospective client; distinguished)

See also

• ABA Formal Op. 08-453: In-House Consulting on Ethical Issues
• ABA Formal Op. 480: Confidentiality Obligations for Lawyer Blogging and Public Commentary
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 98-411.pdf