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ISBA 2012

May a new Illinois lawyer discuss a client matter with a mentor from a formal mentoring program who is not in the same firm?

Short answer: Yes, within limits. A new lawyer may discuss general or abstract questions with a mentor outside the firm as long as the client cannot be identified and no information relating to the representation is disclosed. If the client could be identified or such information must be shared, the new lawyer must get the client's informed consent under Rule 1.6, and both lawyers must avoid creating a conflict with their existing or former clients.

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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2012
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 Not binding precedent.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) is the authoritative source for any reliance.

Plain-English summary

Lawyer A, a new lawyer building an auto-accident personal injury practice, is paired in a formal mentoring program with Lawyer B, a 25-year personal injury litigator who is not in Lawyer A's firm. Lawyer A wants to consult Lawyer B about how to conduct discovery in a client matter. The opinion considers whether Lawyer A may discuss information related to the client matter with the mentor.

The opinion applies the same framework as ISBA Op. 12-15 (lawyer listservs). Because the mentor is not associated with the new lawyer on the matter, both lawyers must honor their ethical duties. The new lawyer must protect confidentiality under Rule 1.6, which bars revealing information relating to the representation without informed consent or another exception. Drawing on ABA Formal Op. 98-411, the opinion explains that a general or abstract inquiry, or a hypothetical, does not violate Rule 1.6 so long as there is no risk the client's identity could be determined; a general question about discovery procedure in personal injury matters likely would not breach confidentiality. Disclosures should be limited to what is necessary for a useful consultation. The opinion cites the Illinois Commission on Professionalism's sample Mentoring Agreement, under which the new lawyer agrees not to identify any client or reveal any client confidence and not to seek advice about specific matters or clients.

If the mentor could determine the client's identity, or the inquiry otherwise risks disclosing information that could harm the client, the new lawyer must consult the client under Rule 1.4 and obtain informed consent (Rule 1.0(e)) before the consultation, including an explanation that disclosure could harm the client and may waive the attorney-client privilege. The opinion also holds the new lawyer should avoid a mentoring relationship with a lawyer who is or is likely to be adverse counsel in the new lawyer's matters, and the mentor must take reasonable steps to avoid creating conflicts with the mentor's own or the mentor's firm's clients (Rules 1.7 and 1.9). If a conflict develops, the lawyers must consult their respective clients and may have to withdraw. Finally, the consultation is not a substitute for the lawyer's own research and judgment (Rule 1.1, Comment 5).

In practice

The opinion holds that a new Illinois lawyer may consult a mentor outside the firm and that doing so can support competence under Rule 1.1, but that the new lawyer must keep the inquiry general or abstract, or anonymized, to avoid breaching Rule 1.6, and must obtain the client's informed consent under Rules 1.4 and 1.0(e) if the client could be identified or protected information must be shared. It holds that both lawyers must guard against creating conflicts with their own existing or former clients under Rules 1.7 and 1.9, and that the consultation does not replace the new lawyer's independent research.

Common questions

Q: Can a new lawyer talk to a mentor about a real client matter?

A: Yes, if the discussion stays general or abstract. The opinion holds that a general question, such as one about discovery procedure in personal injury cases, likely does not violate Rule 1.6 as long as the client cannot be identified and no information relating to the representation is disclosed.

Q: When does the new lawyer need the client's consent before consulting a mentor?

A: When the mentor could identify the client or the inquiry risks disclosing information that could harm the client. The opinion holds the new lawyer must then consult the client under Rule 1.4 and obtain informed consent, including that the disclosure may waive the attorney-client privilege.

Q: Do mentoring programs raise conflict concerns?

A: Yes. The opinion holds the new lawyer should avoid being mentored by a likely adverse counsel, and the mentor must avoid creating conflicts with the mentor's own or the firm's clients under Rules 1.7 and 1.9; if a conflict develops, the lawyers may have to withdraw.

Background and rules framework

The opinion interprets Illinois Rule 1.6 (confidentiality; Model Rule 1.6), Rule 1.1 (competence; Model Rule 1.1), Rule 1.4 (communication; Model Rule 1.4) with the Rule 1.0(e) definition of informed consent, and Rules 1.7 and 1.9 (current- and former-client conflicts). It applies the consultation standard of ABA Formal Op. 98-411, the companion analysis in ISBA Op. 12-15, and the Illinois Commission on Professionalism's sample Mentoring Agreement.

Citations and references

Rules of Professional Conduct:

  • Illinois RPC 1.6 (confidentiality) / MR 1.6
  • Illinois RPC 1.1 (competence) / MR 1.1
  • Illinois RPC 1.4 (communication) / MR 1.4
  • Illinois RPC 1.0(e) (informed consent) / MR 1.0
  • Illinois RPC 1.7, 1.9 (current- and former-client conflicts) / MR 1.7, MR 1.9

Other opinions cited:

  • ABA Formal Op. 98-411 (1998), consulting lawyers outside the firm
  • ISBA Opinion 12-15 (May 2012), lawyer listservs and online discussion groups
  • Oregon Formal Ethics Op. 2011-184
  • Maine Ethics Op. 171 (1999)

See also

Source

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