Can a lawyer give a second opinion to someone who already has a lawyer in the matter?

Plain-English summary

Responding to recurring Ethics Hotline inquiries, the committee addressed whether a lawyer may speak with a person who is represented by other counsel when that person seeks a second opinion on how their current lawyer is handling the case, or wants to discuss hiring the lawyer without first terminating the existing representation. The concern was whether such contact violates Rule 4-4.2, which bars communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer, absent that lawyer's consent.

The opinion concludes that Rule 4-4.2's prohibition is limited to circumstances where the lawyer is "representing a client." Because a lawyer approached for a second opinion does not represent anyone in the matter other than the person seeking the opinion, the ban on contact does not apply. The committee notes that other states have reached the same conclusion (citing opinions from Kentucky, Michigan, Oregon, Philadelphia, South Carolina, and Utah) and that a client's ability to choose a new lawyer would be impaired if lawyers could not discuss the case at the prospective client's request. The committee holds that a lawyer may provide a second opinion at the person's request, must give competent advice under Rule 4-1.1 (considering any limitations the lawyer faces), and should scrupulously avoid improperly soliciting the person. The lawyer may discuss the services the lawyer could provide if the person also requests information about the lawyer's availability and qualifications. Whether particular communications amount to tortious interference with the existing lawyer-client relationship is, the opinion states, a legal question outside the scope of an ethics opinion. A note appended to the opinion records the later decision in Loreen I. Kreizinger, P.A. v. Sheldon J. Schlesinger, P.A., 925 So. 2d 431 (Fla. 4th DCA 2006), that where a client initiates contact with a new lawyer resulting in discharge of the first lawyer, no intentional and unjustified interference is present.

In practice

Under the Florida rules as they stood at the time of this 2002 opinion, the controlling point is that Rule 4-4.2 reaches only a lawyer who is "representing a client" in the matter, so a lawyer consulted by a represented person for a second opinion is not within the rule's no-contact bar. The opinion holds the lawyer must still give competent advice under Rule 4-1.1 and must not solicit the represented person, and it expressly leaves the tortious-interference question to law outside the rules. Per the opinion, the lawyer may describe the services and qualifications the lawyer could offer when the person asks about them.

Common questions

Q: Someone who already has a lawyer asked me for a second opinion. Can I talk to them?

A: Yes. The opinion concludes Rule 4-4.2 applies only when the lawyer is representing a client in the matter, so giving a second opinion at the represented person's request does not violate it.

Q: Do I need the current lawyer's consent first?

A: No. Because the consulted lawyer does not represent anyone in the matter except the person seeking the opinion, the opinion concludes the Rule 4-4.2 consent requirement is not triggered.

Q: Can I tell the person what services I could provide and take them on?

A: Per the opinion, the lawyer may discuss the services, availability, and qualifications if the person requests that information, but should scrupulously avoid improperly soliciting the represented person.

Q: Could giving the second opinion expose me to a tortious-interference claim?

A: The opinion states that whether particular communications constitute tortious interference is a legal question outside the scope of an ethics opinion, and an appended note cites a 2006 Florida appellate decision finding no improper interference where the client initiates the contact.

Background and rules framework

The opinion interprets Rule 4-4.2 (communication with a person represented by counsel, Model Rule 4.2) and Rule 4-1.1 (competence, Model Rule 1.1) of the Rules Regulating The Florida Bar, reading the no-contact rule to apply only when the lawyer is representing a client in the matter.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Fla. Rule 4-4.2 (communication with a represented person)
• Model Rule 1.1 / Fla. Rule 4-1.1 (competence)

Cases:

• Loreen I. Kreizinger, P.A. v. Sheldon J. Schlesinger, P.A., 925 So. 2d 431 (Fla. 4th DCA 2006), no improper interference where the client initiates contact with new counsel (appended note)

Other opinions cited:

• Kentucky Op. E-325; Michigan Op. CI-883; Oregon Formal Op. 1991-81; Philadelphia Op. 91-32; South Carolina Op. 97-07; Utah Op. 110

See also

• Florida Bar Op. 07-3: Unsolicited Information From Would-Be Clients
• Florida Bar Op. 09-1: Communicating With a Represented Government Agency
• CA Ethics Op. 1996-145: Contact When the Opposing Party Is Represented

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-02-5/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-02-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 02-5
March 7, 2003
Advisory ethics opinions are not binding.
A lawyer may give a second opinion to a person who is represented by counsel on how
the person’s current lawyer is handling the case or give information on the services the lawyer
may provide. The lawyer should not solicit the person who is represented.
Note: Loreen I. Kreizinger, P.A. v. Sheldon J. Schlesinger, P.A., 925 So.2d 431 (Fla. 4th
DCA 4/5/2006) states that “Where a client initiates contact with a new lawyer which results
in the discharge of the first lawyer and hiring of the new lawyer, no intentional and
unjustified interference is present.”
RPC: 4-1.1, 4-4.2
Opinions: Kentucky Ethics Opinion E-325; Michigan Ethics Opinion CI-883; Oregon
Formal Ethics Opinion 1991-81; Philadelphia Ethics Opinion 91-32; South
Carolina Ethics Opinion 97-07; Utah Ethics Opinion 110
The Professional Ethics Committee is aware that there have been many inquiries on the
Ethics Hotline regarding a lawyer’s obligations when a person who is represented by counsel in a
matter asks for a “second opinion” on their case. Clients sometimes would like another lawyer’s
opinion on how the lawyer currently representing them is handling the case or on a particular
point of law. Clients may also be interested in obtaining a different lawyer in their matter and
would like to discuss the case and what services the other lawyer can provide without
terminating their current representation first.
Lawyers are concerned that such communications may violate Rule 4-4.2, addressing
communications with persons represented by counsel, or may otherwise violate the Rules of
Professional Conduct. Rule 4-4.2, Rules Regulating The Florida Bar, provides as follows:
In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer.
The prohibition is limited to those circumstances where the lawyer is “representing a
client.” Therefore, the ban on contact does not extend to a lawyer who is approached by a
represented person who merely wants a second opinion, or who may be interested in hiring the
lawyer in the matter, because the lawyer does not represent anyone in the matter other than the
person seeking the second opinion.
Other states analyzing this issue have reached the same conclusion. Kentucky Ethics
Opinion E-325 (lawyer may give second opinion to person represented by counsel, but should
not interfere with the existing attorney-client relationship or solicit the represented person during
the consultation); Michigan Ethics Opinion CI-883 (lawyer may give second opinion to
represented person, is not required to determine the identity of the person’s current counsel

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except to discover if a conflict exists, and should not disclose the consultation with the current
counsel unless the represented person consents); Oregon Formal Ethics Opinion 1991-81
(lawyer can give second opinion to represented person at the person’s request, and may not
disclose to the person’s current counsel that the request was made without the person’s consent);
Philadelphia Ethics Opinion 91-32 (lawyer does not violate any rule by consulting with
prospective client who is already represented by counsel); South Carolina Ethics Opinion 97-07
(lawyer may discuss a case with a person represented by counsel, but should advise the person
whether the attorney will be able to give a competent second opinion without discussing the
matter with the person’s current counsel); Utah Ethics Opinion 110 (lawyer may give a second
opinion to a person represented by counsel, but should not interfere in the existing attorney-client
relationship and should not solicit the represented person).
Some states that have examined this issue have concluded that clients should be able to
consult with as many attorneys as they wish, and to choose which attorney they would like to
represent them on a given matter. Philadelphia Bar Ethics Opinion 91-32; Michigan Ethics
Opinion CI-883. A client’s ability to choose a new lawyer would be impaired if lawyers were
prohibited from discussing, at the prospective client’s request, aspects of the case, including what
services the consulted lawyer could provide.
The committee therefore concludes that a lawyer may provide a second opinion to a
person who is represented by counsel at the person’s request. In providing the second opinion,
the lawyer must give competent advice, and in doing so should carefully consider any limitations
with which the lawyer is faced. Rule 4-1.1, Rules Regulating The Florida Bar. The lawyer
should scrupulously avoid improperly soliciting the person. The lawyer may discuss what
services the lawyer would be able to provide if the represented person requests not merely a
second opinion, but also information about the lawyer’s availability and qualifications. Whether
or not particular communications between the lawyer and the represented person might be
considered tortious interference with an existing lawyer-client relationship is a legal question,
outside the scope of an ethics opinion.