Can a Colorado lawyer give a second opinion to someone already represented by another lawyer, without first getting that lawyer's consent?

Plain-English summary

Opinion 111 (adopted January 19, 2002) addresses a recurring question: when a client who is already represented by Lawyer No. 1 in a matter contacts a different lawyer (Lawyer No. 2) to obtain a second opinion or a review of Lawyer No. 1's work, must Lawyer No. 2 first get Lawyer No. 1's consent, and must Lawyer No. 2 decline if the client refuses to authorize contact with Lawyer No. 1?

On the first question, the opinion concludes that Rule 4.2 does not apply. By its terms the rule bars a lawyer who is representing a client from communicating about the subject of the representation with a party the lawyer knows is represented by another lawyer in the matter, without that lawyer's consent. The Committee reasons that the party Rule 4.2 protects is someone other than the client seeking the second opinion, so the rule does not reach a client's own request for additional advice. Extending Rule 4.2 to second-opinion situations would also infringe the client's right to seek advice or representation from counsel of the client's choosing, including advice about the merit of prior advice or the competence of Lawyer No. 1. So Lawyer No. 2 need not obtain Lawyer No. 1's consent to consult with the client.

The opinion then sets two duties that Lawyer No. 2 still owes. Under Rule 1.7, Lawyer No. 2 must avoid conflicts of interest and maintain professional independence, so that Lawyer No. 2's own interest in possibly being retained does not influence the advice. Under Rule 1.1, Lawyer No. 2 must give competent advice. The Committee distinguishes two kinds of second opinions. For fact-dependent opinions, such as the merits of a settlement offer or a transaction, competent advice may be difficult or impossible without consulting Lawyer No. 1 and the underlying facts; if the client refuses to authorize that contact, Lawyer No. 2 must either decline to give the second opinion or clearly limit its scope to the facts and circumstances Lawyer No. 2 was able to obtain. For opinions that turn on the existence or scope of governing law, by contrast, Lawyer No. 2 may opine without consulting Lawyer No. 1, because such questions may not require extensive knowledge of the underlying facts.

In practice

Under the Colorado rule as it stood at the time of the opinion, the analysis turns on who Rule 4.2 protects and on what competence requires. The opinion holds that the no-contact rule does not bar a second lawyer from advising a client who seeks a second opinion, because the client is not the protected party; that the second lawyer must keep professional independence and avoid conflicts under Rule 1.7; and that the competence duty under Rule 1.1 may require consulting the first lawyer for fact-dependent opinions, so that the second lawyer must decline or limit scope if the client refuses to authorize that contact, while purely legal questions can be answered without such contact. Because the text and comments of Rule 4.2 have been amended since 2002, confirm Colorado's current Rule 4.2 before relying on the specifics.

Common questions

Q: A person already has a lawyer but wants a second opinion from me. Do I need the other lawyer's permission first?

A: No. The opinion concludes Rule 4.2 does not require the second lawyer to obtain the first lawyer's consent, because the rule protects the opposing party, not the client who is seeking the second opinion.

Q: Can I review and critique the other lawyer's handling of the matter?

A: Yes. The opinion concludes the client may seek advice on the merit of prior advice or the competence of the first lawyer's representation, and the second lawyer may discuss those concerns without the first lawyer's consent, while clarifying the client's analysis of the first lawyer's conduct.

Q: The client won't let me talk to their current lawyer. Can I still give a second opinion?

A: It depends on the question. For fact-dependent opinions, such as the merits of a settlement offer, the opinion concludes that competence under Rule 1.1 may require consulting the first lawyer; if the client refuses, the second lawyer must either decline or clearly limit the opinion's scope to the available facts. Purely legal questions can be answered without that contact.

Q: What conflicts should I watch for in giving a second opinion?

A: The opinion directs attention to Rule 1.7: the second lawyer must maintain professional independence so that the lawyer's own interest in possibly being retained does not influence the nature of the advice.

Background and rules framework

The opinion interprets Colo. RPC 4.2 (communication with a person represented by counsel), reading the rule, as it then stood, to protect the opposing party rather than a lawyer's own client, so that it does not reach a client-initiated request for a second opinion. It then applies Colo. RPC 1.7 (conflicts of interest and professional independence) and Colo. RPC 1.1 (competence), under which the need to consult prior counsel depends on whether the second opinion is fact-dependent or turns on the existence of governing law.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 4.2 / Model Rule 4.2 (communication with represented persons)
• Colo. RPC 1.7 / Model Rule 1.7 (conflicts of interest)
• Colo. RPC 1.1 / Model Rule 1.1 (competence)

See also

• ABA Formal Op. 95-396: The No-Contact Rule (4.2)
• CBA Formal Op. 120: Representing an Organization
• CBA Formal Op. 133: Lawyer-Party Contacting Adversary

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_111_2011.pdf