Ezel / Ethics Opinions / OSB

Can a lawyer give a second opinion to someone already represented by another lawyer, and may the lawyer tell that other lawyer about the request?

Short answer The opinion concludes a lawyer approached for a second opinion may give it without the other lawyer's consent because the no-contact rule does not apply to a prospective client who seeks the lawyer out; but the lawyer generally may not tell the existing lawyer about the request, since it is confidential information.
Bar
OSB
Issued
2005
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 2005. Ask about yours and see what the current Oregon Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Lawyer A is approached by a potential client who says they are unhappy with the work Lawyer B is doing and asks Lawyer A for a second opinion. The opinion asks whether Lawyer A may provide the second opinion and whether Lawyer A may inform Lawyer B of the request.

On the first question, the opinion answers yes. Oregon RPC 4.2 bars a lawyer who is representing a client or the lawyer's own interests from communicating with a person the lawyer knows to be represented, absent consent or other authority. But the rule applies when the lawyer is representing a client or the lawyer's own interests in a matter, not when the lawyer is approached by a prospective client. Neither RPC 4.2 nor its predecessor has ever been read to bar a lawyer from giving a second opinion to a represented party. The opinion cites the Restatement and ABA Model Rule 4.2 comment [4], under which a lawyer not otherwise representing a client in the matter may respond to a represented person seeking a second opinion, including an opinion on the propriety of the first lawyer's representation.

On the second question, the opinion answers no, qualified. Whether Lawyer A may tell Lawyer B of the request turns on ORS 9.460(3) and Oregon RPC 1.6. The potential client's request for a second opinion is information relating to the representation of the client, so Lawyer A cannot reveal it to Lawyer B unless the potential client consents or another RPC 1.6 exception applies.

In practice

The opinion holds that, under Oregon RPC 4.2, the no-contact rule does not reach a lawyer who is sought out by a prospective client for a second opinion, so the lawyer may give it without the existing lawyer's consent. Separately, under RPC 1.6 the fact of the request is confidential information about a (prospective) client, so the lawyer generally may not disclose it to the existing lawyer absent the client's consent or another exception. Verify the current text of Oregon RPC 4.2 and RPC 1.6 before relying on any specific point.

Common questions

Q: Someone with a lawyer asks me for a second opinion. Can I give it?

A: Yes. The opinion concludes RPC 4.2 does not apply when a represented person seeks out a lawyer who is not otherwise representing a client in the matter, so the lawyer may provide a second opinion, including on the propriety of the first lawyer's work.

Q: Should I tell the person's current lawyer that they came to me?

A: Generally no. The opinion concludes the request is information relating to the representation protected by RPC 1.6, so you may not reveal it to the current lawyer unless the client consents or another RPC 1.6 exception applies.

Q: Does the no-contact rule stop me from talking to a represented person at all?

A: Not here. Per the opinion, RPC 4.2 limits a lawyer who is representing a client or their own interests; it does not bar responding to a prospective client who approaches the lawyer for advice.

Background and rules framework

The opinion interprets Oregon RPC 4.2 (communicating with a represented person) and RPC 1.6 (confidentiality), read with ORS 9.460(3), corresponding to Model Rules 4.2 and 1.6. The analysis distinguishes the lawyer who initiates contact while representing a client from the lawyer approached by a prospective client, and treats a second-opinion request as confidential information.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 4.2 / Model Rule 4.2 (communication with a represented person)
  • Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)

Statutes:

  • ORS 9.460(3) (duty to maintain client confidences)

Cases:

  • State v. Keenan, 307 Or 515, 771 P2d 244 (1989)

Other opinions cited:

  • ABA Model Rule 4.2, comment [4] (second opinions for represented persons)
  • OSB Formal Ethics Op. No. 2005-23 (client confidences)

See also

Source

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