Ezel / Ethics Opinions / COBAR
COBAR November 1, 2019

Can a Colorado lawyer consult a lawyer at another firm about a client's matter, and what must the lawyer do about confidentiality?

Short answer: Yes, with limits. The opinion concludes a lawyer may consult a lawyer at another firm about a client's matter. General or hypothetical inquiries that do not reveal information relating to the representation do not implicate Rule 1.6, but disclosing client information requires the client's informed consent or implied authorization, and the consulting lawyer must limit disclosures to what is reasonably necessary, guard confidentiality, and check for conflicts under Rule 1.7.

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This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2019
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Opinion 138 addresses the ethical duties of a lawyer (the consulting lawyer) who consults a lawyer at a different firm about a client's matter for the client's benefit. The opinion is expressly limited to the consulting lawyer's duties and does not address the duties of the lawyer who is consulted. The Committee recognizes, as the ABA and the Texas Bar committee have, that such consultations can benefit lawyers and clients by letting lawyers test their knowledge and get quick access to expertise, and it agrees those consultations are appropriate under certain circumstances.

The core analysis is under Rule 1.6. The Committee draws a line between inquiries that reveal nothing relating to the representation and those that do. General questions about a statute, rule, court opinion, procedure, or about particular judges or opposing lawyers, and questions to a CLE presenter or for legal-research help, do not implicate Rule 1.6 so long as the lawyer discloses no information relating to the representation. Consultations using hypotheticals are likewise permissible, provided the hypothetical does not create a reasonable likelihood that the listener could identify the client or the situation. When, however, the consulting lawyer must reveal information relating to the representation to get useful guidance, the lawyer must comply with Rule 1.6: obtain the client's informed consent before the consultation or rely on implied authorization. The Committee states a clear preference for informed consent over implied authorization, reasoning that the comments describe implied authority to disclose as very limited, that relying on it is risky if the client later disputes its scope, and that seeking consent reinforces client trust and the client's control over confidential information.

Even with consent or implied authorization, the consulting lawyer must take steps to prevent inappropriate disclosures under Rule 1.6(c). The Committee advises limiting disclosure to information reasonably necessary for the consultation, not disclosing unnecessary client information, and, where the client wants disclosed information kept confidential, obtaining the consulted lawyer's agreement to maintain confidentiality at the outset (and consulting a different lawyer if that agreement is refused). The opinion also folds in Rule 1.7: a consulting lawyer should consider whether consulting another lawyer creates a conflict, should take reasonable steps to confirm the consulted lawyer and that lawyer's firm do not represent a party adverse to the client (for litigation, checking the docket), and notes that under Liebnow v. Boston Enterprises the Colorado Supreme Court recognized Rule 1.7 can apply to consultations even when no lawyer-client relationship forms.

In practice

The opinion holds that, under the Colorado rules as they stood at the time of the opinion, the permissibility of a lawyer-to-lawyer consultation turns on whether the consulting lawyer discloses information relating to the representation. Per the opinion, abstract, general, or properly anonymized hypothetical inquiries do not implicate Rule 1.6, while disclosing client information requires the client's informed consent or implied authorization, with the Committee preferring informed consent. The opinion frames the consulting lawyer's continuing obligations as: disclose only what is reasonably necessary, secure the consulted lawyer's agreement to keep information confidential when the client so wishes, and screen for conflicts under Rule 1.7 before sharing confidential information, including confirming the consulted lawyer's firm is not adverse to the client.

Common questions

Q: Can I call a lawyer at another firm for help on my client's case?

A: Yes. The opinion concludes a lawyer may consult a lawyer at another firm about a client's matter; the limits come from the confidentiality and conflict rules, not from any bar on consultation itself.

Q: Do I need my client's permission to ask a general legal question?

A: Not if you reveal nothing about the representation. The opinion states that general inquiries about a statute, rule, procedure, or even a properly framed hypothetical that does not let the listener identify the client or situation do not implicate Rule 1.6.

Q: What if I need to share actual facts about my client's case?

A: Then Rule 1.6 applies. The opinion concludes the consulting lawyer must obtain the client's informed consent before the consultation or rely on implied authorization, and it expresses a preference for obtaining informed consent.

Q: What should I do before sharing confidential information with the consulted lawyer?

A: Limit and protect it. The opinion advises disclosing only what is reasonably necessary, obtaining the consulted lawyer's agreement to maintain confidentiality where the client wishes, and confirming the consulted lawyer and that lawyer's firm are not adverse to the client under Rule 1.7.

Background and rules framework

The opinion interprets Colo. RPC 1.6 (confidentiality), including 1.6(a) (no disclosure of information relating to the representation absent informed consent or implied authorization), 1.6(c) (reasonable efforts to prevent unauthorized disclosure), and Comments [3]-[5], together with Rule 1.7 (concurrent conflicts, including 1.7(a)(2)) and Rule 1.0(e) (definition of informed consent). It aligns with ABA Formal Op. 98-411 and Texas Ethics Op. 673 and relies on the Committee's earlier Formal Op. 130 on sharing materials relating to a representation, and on Liebnow v. Boston Enterprises, 2013 CO 8.

Citations and references

Rules of Professional Conduct:

  • Colo. RPC 1.6 / Model Rule 1.6 (confidentiality; 1.6(a), 1.6(c), Comments [3]-[5])
  • Colo. RPC 1.7 / Model Rule 1.7 (concurrent conflicts; 1.7(a)(2) material limitation)
  • Colo. RPC 1.0(e) / Model Rule 1.0(e) (informed consent)

Cases:

  • Liebnow by & through Liebnow v. Boston Enterprises, Inc., 2013 CO 8, Rule 1.7 can apply to consultations where no lawyer-client relationship forms

Other opinions cited:

  • ABA Formal Op. 98-411 (1998): ethical issues in lawyer-to-lawyer consultation
  • Texas Ethics Op. 673 (2018): lawyer-to-lawyer consultation and confidentiality
  • CBA Formal Op. 130 (2017/2018): online posting and sharing of materials relating to a representation

See also

Source

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