Can a lawyer talk to someone who already has a lawyer about taking over the representation?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 215 (adopted October 16, 1990) addressed an attorney who was retained by a client dissatisfied with her existing counsel. The new attorney wrote the former attorney that she had been retained and asked him to turn over the file; the client had met all of her financial obligations to the former attorney. The former attorney accused the new attorney of unethical conduct, apparently for speaking with the client about the representation before the client discharged him, and demanded $13.75 for photocopying and postage. The inquirer asked whether it is unethical to offer advice and legal services to a person already represented by counsel who is dissatisfied with the current attorney.
The committee concluded that no provision of the Code or the Rules prohibits such a communication, noting a common misconception among some members of the bar that the contact is barred until the client discharges prior counsel. DR 7-104(A)(1) bars a lawyer, during the lawyer's representation of a client, from communicating about the subject of the representation with a party known to be represented in the matter without the other lawyer's consent. By its title and text, the committee reasoned, the rule reaches a party adverse to the lawyer's client, not a person who seeks the lawyer's advice to replace prior counsel: a lawyer consulting a prospective client is not communicating "during the course of representation," because the lawyer does not yet have a client, and the reference to the "other" party can only mean a party other than the one the lawyer represents. Because Rule 4.2(a) is virtually identical, the committee concluded the result is the same under the Rules.
The committee added that DR 2-104 bars a lawyer who gave unsolicited advice from accepting resulting employment only where the advice was false, fraudulent, misleading, or coercive, and that nothing in it bars giving advice to a represented person who sought the lawyer out; the analogous Rule 7.1(b) bars solicitation only by improper means such as false statements or undue influence. The committee presupposed there was no disqualifying conflict, and noted it had addressed a client's right to have a former lawyer turn over file materials in Opinion 168.
Currency note
This opinion was issued in 1990, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct, and was decided under the former Code of Professional Responsibility. 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 talk to someone who already had a lawyer about representing them?
A: Yes. The committee concluded that neither DR 7-104(A)(1) nor Rule 4.2(a) prohibits communicating with a represented person to determine whether that person wishes to retain the lawyer and discharge current counsel.
Q: Did the person have to fire their current lawyer first?
A: No. The committee noted the common misconception that such contact is barred until the client discharges prior counsel, and concluded the no-contact rule does not require it.
Q: Why did the no-contact rule not apply?
A: The committee concluded the no-contact rule reaches a party adverse to the lawyer's client, not a prospective client, and that a lawyer consulting a prospective client is not yet communicating "during the course of representation."
Q: Could the lawyer give advice to the dissatisfied person?
A: Yes, if sought out. The committee concluded the solicitation rules, DR 2-104 and Rule 7.1(b), bar only advice that is false, coercive, or otherwise improper, not advice a person requests.
Background and rules framework
The opinion was decided under the former Code's DR 7-104(A)(1) (communicating with a represented party) and DR 2-104 (suggestion of need of legal services), and noted that the Rules of Professional Conduct, effective January 1, 1991, reach the same result under Rule 4.2(a) (communication with a represented person) and Rule 7.1(b) (solicitation). The committee read the no-contact rule's text and purpose to cover only an adverse represented party, not a prospective client seeking to change counsel.
Citations and references
Rules of Professional Conduct and Code provisions:
- D.C. RPC 4.2(a) / Model Rule 4.2 (communication with a represented person)
- D.C. RPC 7.1(b) / Model Rule 7.1 (solicitation by improper means)
- Former Code DR 7-104(A)(1) (communicating with a represented party) and DR 2-104 (suggestion of need of legal services)
Other opinions cited:
- D.C. Opinion 168: a client's right to have a former lawyer provide file materials to new counsel
See also
- DC Ethics Op. 232: Multiple Clients in a Criminal Matter
- DC Ethics Op. 275: Confidences From a Prospective Client
- ABA Formal Op. 06-443: Contact With an Organization's Inside Counsel
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-215
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