Under California Rule 2-100, may an attorney who does not represent a client in a matter ethically contact a friend who is represented by counsel to advise the friend on the competence of that representation?

Currency note

This opinion was issued in 1996, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 2-100 corresponds to current Rule 4.2 (communication with a represented person); former Rule 1-400 (advertising and solicitation) was restructured into current Rules 7.1, 7.2, and 7.3. 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered Attorney A, who learned that a friend B was represented by Attorney C and contacted B to advise that A believed C was not competent to represent B. A's contact was not motivated by intent to represent B; A's sole concern was that B be adequately represented.

The committee identified Rule 2-100(A) as prohibiting a member, "while representing a client," from communicating directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the other lawyer's consent. Because A did not represent a client within the meaning of the rule, the committee concluded there was no violation of Rule 2-100.

The committee identified that the predecessor rule (Rule 7-103) had expressly prohibited any member, whether or not representing a client, from communicating with a represented party. The change in language made clear that present Rule 2-100 was not intended to restrict members not representing a client in the matter.

The committee identified Rule 1-400 (advertising and solicitation) as inapplicable because A's communication was not made concerning the availability of professional employment.

The committee identified that lay persons may place great confidence in unsolicited legal advice received from an attorney. The committee identified that the attorney would frame any advice or opinion in terms that allow the lay person to use it to improve the existing representation or to make an independent evaluation, possibly by communicating with another attorney (consistent with Rule 2-100(C)(2), which permits ex parte communications initiated by a party seeking independent legal advice).

The committee identified LACBA Formal Opinion 311 (May 15, 1969), which had stated that, in the absence of employment, a lawyer may not ethically express to another lawyer's client an opinion on the reasonableness of fees charged by the other lawyer. The committee identified that opinion as based on reasoning from a canon no longer authoritative, and concluded that it was not ethically improper for an attorney not involved in the matter to comment to the client of another attorney about the reasonableness of attorney's fees. The committee disapproved LACBA Formal Opinion 311 (citing State Bar Formal Opinion 1987-95 on disapproval of outdated opinions).

In a footnote, the committee identified that attorneys need to be cautious about interfering with an existing attorney-client relationship, citing Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell.

Common questions

Q: Can a California lawyer who does not represent any client in a matter advise a friend (represented by another lawyer) about that lawyer's competence?

A: Per the opinion, yes. The committee identified Rule 2-100's prohibition as applying only to lawyers "representing a client" in the matter. The communication does not violate Rule 2-100 because the advising lawyer is not so engaged.

Q: Does Rule 1-400 (advertising and solicitation) reach this kind of communication?

A: Per the opinion, no, when the communication does not concern the availability of professional employment. Because A's communication was solely advisory about another lawyer's competence and not an offer of A's services, Rule 1-400 did not apply.

Q: Was the prior LACBA opinion that barred this conduct overruled?

A: Per the opinion, yes. The committee disapproved LACBA Formal Opinion 311 (1969), which had reached the opposite conclusion regarding fee reasonableness, on the ground that it relied on a canon no longer authoritative.

Q: Is there any related caution?

A: The committee identified, in a footnote, that attorneys should be cautious about interfering with an existing attorney-client relationship, citing the Frazier, Dame case.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 2-100 (communication with represented party), particularly subdivision (A), and Rule 1-400 (advertising and solicitation), particularly subdivisions (A) and (B)(1). The committee referenced the predecessor Rule 7-103 to explain the narrower scope of the present Rule 2-100. Rule 2-100(C)(2) (ex parte communication initiated by a party seeking independent advice) is identified as a related provision.

Citations and references

Rules of Professional Conduct (former):

• California Rule 2-100 (communication with represented party)
• California Rule 1-400 (advertising and solicitation)

Cases:

• Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell, 70 Cal.App.3d 331 (1977), caution against interference with existing attorney-client relationships

Other opinions cited:

• LACBA Formal Opinion 311 (May 15, 1969), disapproved
• State Bar Formal Opinion 1987-95

See also

• LACBA Opinion 490: Ex Parte Communications With Represented Parties and Adverse Witnesses
• LACBA Opinion 472: Contact With Represented Persons in Organization
• LACBA Opinion 497: Consulting With Client During Deposition

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010917