Can a lawyer hired by an accountant review the work of the client's own lawyer and present those views to the client's board?
Apply this to your situation
This page answers the general question as of 1975. Ask about yours and see what the current New York Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The committee considered whether a lawyer retained by an accountant may review a pension plan that another lawyer prepared for the accountant's corporate client, and appear with the accountant before the client's board of directors as legal advisor to the accountant. It distinguished by purpose. The lawyer may advise the accountant about the plan for the accountant's own purposes, so the accountant understands it and can perform his duties. But if the legal advice is meant to enable the accountant in turn to give legal advice to his client on the client's legal problems, then accepting the employment may violate Canon 3 and DR 3-101(A), which forbid a lawyer from aiding a nonlawyer in the unauthorized practice of law (ABA 297 (1961)).
The committee found that having the lawyer appear with the accountant before the board addressed that concern. It is within the board's discretion whether it wants the accountant to appear with counsel and whether it informs the corporation's own counsel. A client may retain a second lawyer solely to evaluate the work of a previously retained lawyer, and may do so without informing the first lawyer (N.Y. State 310 (1973)). Although here the corporate client was not itself retaining the reviewing lawyer, it consented to his appearing for that purpose, an equivalent, and the interests of the accountant and client were not adverse so as to require the presence or notice of the client's counsel.
The committee allowed the appearance but stressed the position is delicate, repeating the cautions of N.Y. State 310 (1973): the reviewing lawyer should seek permission to communicate with the client's counsel before rendering an adverse evaluation, so it is given with adequate understanding of the facts, and should observe the precept condemning wrongful or improper disparagement of another lawyer or his work in an effort to supplant him.
Currency note
This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (a lawyer's advisory role is now addressed by Rule 2.1 and assisting the unauthorized practice of law by Rule 5.5). 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 review the work of the client's own lawyer?
A: Under this opinion, yes. A client may retain a second lawyer solely to evaluate the work of a previously retained lawyer, even without informing the first (N.Y. State 310 (1973)); here the accountant's lawyer could do so for the accountant's purposes.
Q: When would advising the accountant cross the line?
A: Per the opinion, if the legal advice is meant to enable the accountant to give legal advice to his own client, the lawyer may be aiding the unauthorized practice of law in violation of Canon 3 and DR 3-101(A).
Q: Must the reviewing lawyer notify the client's existing counsel?
A: The committee did not require notice where the client consented and interests were not adverse, but advised the reviewing lawyer to seek permission to speak with the client's counsel before giving an adverse evaluation and to avoid improperly disparaging that lawyer's work.
Background and rules framework
The opinion applies the then-current New York Code's Canon 3 and DR 3-101(A) on the unauthorized practice of law, with the second-opinion guidance of N.Y. State 310 (1973) and ABA 297 (1961). The current analogues are Rule 2.1 (the lawyer as advisor) and Rule 5.5 (unauthorized practice of law).
Citations and references
Rules of Professional Conduct:
- MR 2.1 (advisor)
- MR 5.5 (unauthorized practice of law)
- NY Canon 3; DR 3-101(A)
Other opinions cited:
- N.Y. State 310 (1973): retaining a second lawyer to evaluate prior counsel's work; cautions on adverse evaluations
- ABA 297 (1961): aiding a nonlawyer in giving legal advice
See also
- NY State Bar Op. 423: Merging a law firm with a collection agency
- NY State Bar Op. 446: Employing a licensed lay representative before the Comp Board
- NY State Bar Op. 457: A state tax attorney's private estate-tax conflict
Source
- Landing page: https://nysba.org/opinion-421/
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