If someone already has a lawyer for a matter contacts a second lawyer about that same matter, can the second lawyer talk to them without notifying the first lawyer?
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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
Lawyer A represented a client in pretrial litigation. While A was still representing the client, the client retained Lawyer B for the same matter; B did not contact A or seek A's permission before communicating with the client, and the client then terminated A. The committee is asked whether a second lawyer is barred or restricted from communicating with an already-represented person who seeks new representation, and whether doing so improperly interferes with the first lawyer's business relationship.
The opinion concludes Rule 4.2 does not apply. By its terms and Comment 4, Rule 4.2 restricts a lawyer who is representing a client from contacting another represented party, but it expressly does not preclude communication with a represented person who is seeking advice from a lawyer not otherwise representing a client in the matter. Because Lawyer B had no involvement until the client reached out, Rule 4.2 imposed no restriction and no obligation to clear the contact with Lawyer A. The opinion adds this is consistent with Rule 5.6, which protects "the freedom of clients to choose a lawyer"; requiring even notice to existing counsel could restrain a client from seeking new counsel.
The opinion also notes confidentiality cuts the other way: under Rule 1.6, absent the client's consent, Lawyer B could not disclose to Lawyer A the communications with the client, including the fact that the client had contacted B (citing ISBA Op. 12-03, that even a client's name is protected). Even if the relationship stayed merely prospective, Rule 1.18 (with Rule 1.9) would bar B from revealing what she learned. The second question, whether B tortiously interfered with A's business relationship, is a matter of tort law beyond the committee's scope, though the opinion reiterates the rules protect the client's freedom to choose counsel.
In practice
Under this opinion, a lawyer contacted by someone who already has counsel for a matter may speak with that person about representation without notifying or obtaining consent from the current lawyer; the opinion holds Rule 4.2 does not reach a lawyer who has no prior involvement in the matter. It holds Rule 5.6's protection of the client's freedom to choose counsel reinforces that conclusion. The opinion also holds that confidentiality runs in the client's favor: under Rules 1.6 and 1.18, the second lawyer may not disclose the contact, or even that the person reached out, to the first lawyer without the person's consent. Whether the second lawyer tortiously interfered with the first lawyer's business relationship is a tort question the committee does not address.
Common questions
Q: Can I advise someone who already has a lawyer if they come to me about the same case?
A: Yes. The opinion concludes Rule 4.2 does not bar a lawyer with no involvement in the matter from communicating with a represented person seeking new counsel.
Q: Do I have to tell the person's current lawyer before talking to them?
A: No. The opinion concludes no notice to or permission from the current lawyer is required, and notes Rule 5.6 protects the client's freedom to choose a lawyer.
Q: Can I tell the current lawyer that their client contacted me?
A: Not without the person's consent. The opinion concludes Rules 1.6 and 1.18 bar disclosing the communications, including the fact of the contact, absent the person's consent.
Background and rules framework
The opinion interprets Illinois Rule of Professional Conduct 4.2 (communication with a person represented by counsel, and Comment 4), Rule 1.18 (duties to prospective clients), Rule 1.6 (confidentiality), Rule 1.9 (former-client information), and Rule 5.6 (the freedom of clients to choose a lawyer). These correspond to Model Rules 4.2, 1.18, 1.6, 1.9, and 5.6.
Citations and references
Rules:
- Illinois RPC 4.2 and Comment 4 (MR 4.2): communication with a represented person
- Illinois RPC 1.18 (MR 1.18): duties to a prospective client
- Illinois RPC 1.6; 1.9(c)(2) (MR 1.6, 1.9): confidentiality
- Illinois RPC 5.6 (MR 5.6): restrictions on the right to practice; freedom to choose a lawyer
Other opinions cited:
- ISBA Op. 12-03: a client's name is protected confidential information
See also
- ISBA Ethics Op. 12-05: Duties Owed to a Prospective Client When Considering Representation
- ISBA Ethics Op. 12-14: Duties and Obligations of a Departing Law Firm Associate
- NY State Bar Op. 1067: Duties to a Prospective Client Adverse to an Existing Client
Source
- Landing page: https://www.isba.org/ethics/opinions/1803
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