Can a lawyer give a second opinion to someone already represented by another lawyer without violating the no-contact rule?

Plain-English summary

The committee was asked whether a lawyer can advise a person seeking a second opinion on a matter in which they are currently represented by other counsel without violating Rule 4.2. It answered yes.

The committee explained that Rule 4.2 (evolved from DR 7-104(A)(1), "Communicating With One of Adverse Interest") bars an attorney from communicating with a represented person without that counsel's consent, and that the operative concept is adverse interest. The rule was designed to protect a client in litigation from making damaging admissions or signing away rights without the benefit of the client's own counsel. The committee noted that the existing Rule 4.2 opinions all addressed litigation, and that none had addressed a person seeking a disinterested second opinion during another lawyer's representation, much as a patient might seek a second medical opinion.

The committee acknowledged that the comment's statement that the rule covers any represented person could suggest a second opinion requires the first attorney's knowledge and consent. But it reasoned that the spirit of the rule, protecting against disadvantageous admissions or agreements, does not reach a disinterested attorney contacted solely for an objective opinion. A courtesy call to the first attorney would be polite but is not mandated by the rule. If the second attorney steps beyond giving an opinion and begins representing the client outright, the rule could give way to a charge of interference. Until the rule, its comments, or an ABA opinion expands the parameters of Rule 4.2, the committee concluded that second opinions from a disinterested attorney, without interference in the existing representation, do not violate the rule.

Currency note

This opinion was issued in 1990, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer give a second opinion to someone another lawyer represents?

A: The opinion concludes yes, where the second lawyer gives a disinterested opinion and does not interfere in the existing representation.

Q: Does Rule 4.2 forbid this?

A: The opinion reasons Rule 4.2 targets adverse contact aimed at extracting damaging admissions, not a disinterested second opinion sought by the client.

Q: Must the second lawyer notify the first lawyer?

A: The opinion says a courtesy call would be polite but the rule does not mandate it.

Q: When could a second opinion cross the line?

A: The opinion warns that if the second lawyer begins representing the client outright, the conduct could give way to a charge of interference.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 4.2 (communication with a represented person; Model Rule 4.2), tracing it to the predecessor ABA Model Code DR 7-104(A)(1) and reading the rule in light of its anti-adversity purpose.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 4.2 (communication with represented persons) / Model Rule 4.2
• ABA Model Code DR 7-104(A)(1) (predecessor rule)

See also

• State Bar of Montana Ethics Op. 940430: Ex Parte Contact With Government Employees
• State Bar of Montana Ethics Op. 951229: Investigator Pretext Contact

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/900703.pdf

Original opinion text

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

QUESTION PRESENTED: Can a lawyer advise people seeking a second opinion on a matter in which they are currently represented by other counsel without violating Rule 4.2?

ANSWER: Yes.

ANALYSIS: Rule 4.2 evolved from DR 7-104(a)(1), which is entitled, "Communicating With One of Adverse Interest". Both rules essentially bar an attorney from communicating with someone known to be represented by counsel without that counsel's advice or consent.

The operative word in the title of the Disciplinary Rule is adverse. The rule was originally designed to protect client involved in litigation from making damaging omissions or signing rights away without benefit of the advice of his or her own counsel. Clients are historically unsophisticated about the tactics of attorneys in litigation, and will tell the opposing attorney everything if given the chance because they believe the cooperating will resolve the dispute more quickly. This rule, then, keeps attorneys from stepping over that boundary.

The Ethics Opinions related to Rule 4.2 all deal with various aspects of the litigation question. None of the Ethics Opinions have ever addressed the situation where someone comes to an attorney for a second opinion during the course of a representation by another attorney, much the same way a patient would when confronted with a serious illness and several treatment options. So what is the appropriate and ethical response of an attorney in this position?

Doctors often recommend a patient obtain a second opinion when making a decision about treatment options. They want the patient to be well informed and not persuaded to make a decision just because that is what the doctor thinks is best. An attorney, however, does not generally advise a client to see another attorney in the middle of a representation. How, then, does a client go about getting a second opinion? Obviously, the attorney will not appreciate being second guessed. The client certainly does not want to tip his or her hand if all the client wants to do is get an objective, disinterested opinion.

The comments to the Rule provide us with very little guidance, but a large hurdle. The last line of comment 2 reads, "This rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question." From this, it would appear that a second opinion may be given only with the knowledge and consent of the first attorney.

The spirit of the rule is to protect the client from making disadvantageous admissions or agreements. A disinterested attorney contacted solely for the purpose of getting an objective opinion does not fit within the spirit of that protection. A phone call to the first attorney advising him or her of the situation would be polite. However, there appears no mandate in the Rule that this is necessary. If the attorney steps over the boundary of giving a second opinion, starts representing the client outright, then this Rule could give way to a charge of interference.

Until such time as this Rule is changed, or the comments are changed, or an ABA opinion is issued expanding the parameters of Rule 4.2, second opinions from a disinterested attorney where no interference in the course of the representation occurs will not be in violation of the Rule.

THIS OPINION IS ADVISORY ONLY