Ezel / Ethics Opinions / DCBAR
DCBAR December 2004

If a D.C. lawyer is approached by someone who wants to sue an existing client and the lawyer declines, may the lawyer refer that person to another lawyer?

Short answer: The opinion concludes that a lawyer who declines to take on a person seeking representation adverse to an existing client may refer that person to another lawyer. Recommending competent counsel does not prejudice or damage the existing client within the meaning of Rule 1.3(a); the D.C. Rules do not prohibit the referral. The opinion notes practical cautions: a lawyer who learned confidences during the intake must protect them under Rule 1.6 even at the expense of the Rule 1.4 duty to inform the existing client, and some clients may not understand why their lawyer helped an adversary find counsel.

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This page answers the general question as of 2004. 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 2004
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.
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Plain-English summary

Opinion 326 (adopted December 2004) answers a narrow question: when a lawyer is approached by a person who wants representation in a matter adverse to one of the lawyer's existing clients, and the lawyer declines (as Rule 1.7 generally requires), may the lawyer refer that person to another lawyer? The opinion concludes the lawyer may. It notes the D.C. Rules do not speak directly to the situation and that the Committee found no authority from other jurisdictions directly on point, so it reasons from two rules that bear on the question indirectly.

Rule 4.3 lets a lawyer advise an unrepresented person, even one adverse to the lawyer's client, to retain counsel, despite any tactical advantage the client might gain from that person staying unrepresented. From that the opinion infers that the further step of naming a specific lawyer or a list of lawyers does not prejudice the existing client. Rule 1.3(a), which bars a lawyer from intentionally prejudicing or damaging a client, does not require pressing for every tactical advantage; Comment [1] confirms zealous representation does not demand that. The opinion reasons that competent opposing counsel often helps reach a reasonable resolution, and that the adversary would almost certainly find a lawyer anyway, so the referral cannot be said to damage the client. More broadly, helping a person obtain competent representation is consistent with the adversary system and the lawyer's duty to the administration of justice.

The opinion adds practical cautions rather than prohibitions. As a matter of client relations, some clients will not understand why their lawyer helped an adversary find counsel, so a lawyer may simply prefer not to make the referral, and a lawyer who does refer might name more than one lawyer to avoid later recriminations. The opinion also flags a confidentiality trap: if, before recognizing the conflict, the lawyer learned confidences or secrets from the would-be client (the duty under Rule 1.6 attaches once the lawyer agrees to consider the representation), the Rule 1.6 duty not to reveal those confidences trumps the more general Rule 1.4 duty to keep the existing client informed, even of a contemplated suit. The opinion concludes each lawyer must decide for herself whether making such a referral is wise.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer who declines a matter adverse to an existing client may, per the opinion, refer the would-be client to another lawyer; the opinion concludes that recommending competent counsel never constitutes prejudice to the client within the meaning of Rule 1.3(a) and is not prohibited by the Rules. The opinion frames the referral as consistent with the adversary system and the duty to the administration of justice.

The opinion identifies two practical points it does not turn into requirements: client relations (a client may not understand the referral, so the lawyer may choose not to make it, and may name more than one lawyer if she does), and confidentiality (if the lawyer obtained the would-be client's confidences during intake, Rule 1.6 bars revealing them and overrides the Rule 1.4 duty to tell the existing client about the contemplated suit). Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: I declined to sue my own client for someone. Can I still point that person to another lawyer?

A: The opinion concludes yes. Referring the person to another lawyer, even on a matter adverse to your existing client, is not prohibited by the D.C. Rules and does not prejudice the client under Rule 1.3(a).

Q: Doesn't helping an adversary find counsel damage my client?

A: The opinion concludes no. Rule 1.3(a) does not require pressing for every tactical advantage; the person would likely find counsel anyway, and competent opposing counsel can help reach a reasonable resolution, so the referral is not "damage" to the client.

Q: What if I already learned the person's confidences before realizing they were adverse to my client?

A: The opinion concludes the Rule 1.6 duty not to reveal those confidences (which attaches once the lawyer agrees to consider the representation) trumps the Rule 1.4 duty to keep the existing client informed, so the lawyer must protect the confidences even of the contemplated suit.

Q: Should I name just one lawyer or several?

A: The opinion does not require either, but suggests a lawyer who chooses to refer might name more than one lawyer to avoid recriminations if the recommended lawyer proves unsatisfactory or vexatious.

Background and rules framework

The opinion interprets D.C. Rule 1.7 (which generally prohibits the conflicted representation the lawyer is declining), Rule 4.3 (dealing with an unrepresented person, including advising that person to secure counsel), and Rule 1.3(a) (a lawyer shall not intentionally prejudice or damage a client). It applies Rule 1.6 (confidentiality, which under Comment [7] attaches when the lawyer agrees to consider whether to take a matter) and Rule 1.4 (communication) to the situation where the lawyer learned the would-be client's confidences before recognizing the conflict.

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest: general rule)
  • D.C. RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)
  • D.C. RPC 1.3(a) / Model Rule 1.3 (diligence; not intentionally damaging a client)
  • D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; duty attaches at intake)
  • D.C. RPC 1.4 / Model Rule 1.4 (keeping the client informed)

Other opinions cited:

  • ABA Formal Op. 95-390 (indicia of when a lawyer-client relationship arises)
  • N.Y. State Bar Op. 643 (1993); Fla. Bar Op. 92-1 (1992) (confidences learned at intake and disqualification)

See also

Source

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