May a Missouri lawyer give a second opinion to someone represented by another lawyer in the same matter without that lawyer's consent?

Plain-English summary

A client already represented in a dissolution matter contacted another lawyer for a second opinion because the client believed the matter should move faster. The opinion concludes that the second lawyer may meet with the client without the first lawyer's permission.

Rule 4-4.2 Comment [4] says the represented-person communication rule does not preclude communication with a represented person seeking advice from a lawyer who is not otherwise representing a client in the matter.

The person may retain the second lawyer or remain with current counsel. During the consultation, the person is a prospective client under Rule 4-1.18 and retains that status for future-conflict purposes if no lawyer-client relationship results.

If the person retains the second lawyer, the first lawyer must withdraw under Rule 4-1.16. The opinion does not decide whether a lawyer-client relationship has formed, identifying that as a factual question outside the Rules of Professional Conduct.

In practice

Under this opinion, Rule 4-4.2 does not give current counsel control over a client's effort to seek independent legal advice. The consulting lawyer nevertheless acquires Rule 4-1.18 duties to the prospective client, whether or not the consultation leads to representation.

Common questions

Q: Must the second lawyer obtain current counsel's consent before meeting the client?

A: No. Comment [4] expressly permits advice to a represented person when the consulting lawyer does not otherwise represent a client in the matter.

Q: Is the person a prospective client during the second-opinion meeting?

A: Yes. Rule 4-1.18 applies and remains relevant to future conflicts even if no representation follows.

Q: May the person stay with current counsel after the consultation?

A: Yes. The opinion says the person may retain the second lawyer or remain with the first.

Q: What happens if the person hires the second lawyer?

A: The first lawyer must withdraw in accordance with Rule 4-1.16.

Q: Does the opinion decide when a lawyer-client relationship begins?

A: No. It identifies that as a question of fact beyond the Rules' scope.

Background and rules framework

Rule 4-4.2 and Comment [4] distinguish a second-opinion consultation from prohibited communication with a represented opposing person. Rule 4-1.18 governs the prospective-client relationship, and Rule 4-1.16 governs withdrawal if the client changes counsel.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.16, 4-1.18, and 4-4.2
• Missouri Rule 4-4.2 Comment [4]; Scope [17]

Other opinions cited:

• Missouri Informal Opinion 980173

See also

• Louisiana Op. 07-RPCC-014: Second Opinions for Represented Persons
• Colorado Ethics Op. 111: Second Opinion for a Represented Person
• Connecticut Informal Op. 11-05: Second Opinion and Current Counsel

Source

• Landing page: Missouri Informal Opinion 2021-11

Original opinion text

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

Question: Lawyer B has been contacted by Client regarding possible representation in a dissolution of marriage matter. Client is represented by Lawyer A in the dissolution of marriage but is seeking a second opinion as to the representation, as Client believes that matter should be moving faster. May Lawyer B meet with Client without the permission of Lawyer A?

Answer: Yes, Lawyer B may meet with Client regarding possible representation in the dissolution of marriage matter without the consent of Lawyer A. See also Mo. Informal Opinion 980173. Comment [4] to Rule 4–4.2 provides that this Rule 4–4.2 does not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.” Client may choose to engage the services of Lawyer B or remain with Lawyer A. Client is a prospective client pursuant to Rule 4–1.18 when meeting with Lawyer B, and remains as such if no client-lawyer relationship ensues with Lawyer B for future conflicts of interest. If Client chooses to engage the services of Lawyer B, Lawyer A shall withdraw in accordance with Rule 4–1.16. Whether a lawyer-client relationship exists is a matter of fact and beyond the scope of the Rules of Professional Conduct. Scope [17].