Can a South Carolina lawyer give a second opinion to someone the lawyer knows is represented by another lawyer in the same matter, without the first lawyer's consent?

Plain-English summary

A client represented by Attorney A had concerns about how Attorney A was handling the matter and wanted to discuss them with Attorney B, without terminating Attorney A or telling Attorney A about the consultation. The question was whether Attorney B could discuss the pending matter with the client, knowing the client was represented, without Attorney A's consent.

The committee concluded there was no prohibition. It noted the former Code of Professional Responsibility (EC 2-30, and the committee's Opinion 85-26 applying it) discouraged such consultations, but the current Rules of Professional Conduct contain no comparable proscription. Attorney B therefore is not barred from discussing the representation, but should defer to other rules that may limit or qualify any opinion he reaches. The committee sorted likely inquiries into three categories: matters of attorney conduct or client relations, objective legal advice, and subjective legal advice.

Across all three, the committee said Attorney B should familiarize himself with the underlying facts and, if he cannot do so without contacting Attorney A, tell the client that a competent opinion cannot be given without that contact, citing Rules 1.1 and 1.4(b). For matters of attorney conduct, Attorney B may discuss the client's concerns but should clarify the client's conclusions first. For objective advice where the law is clear, Attorney B may give a second opinion without further inquiry. For subjective advice, such as evaluating a settlement offer, the committee cautioned that a competent second opinion may be impossible without investigating liability, damages, and witness credibility, likely requiring discussion with Attorney A; failing to advise the client of this could implicate Rules 1.1 and 2.1.

Currency note

This opinion was issued in 1997, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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 already represents?

A: The committee concluded yes. The current Rules contain no proscription comparable to the former EC 2-30, so a lawyer is not prohibited from discussing the matter and giving a second opinion without the first lawyer's consent.

Q: Does the lawyer need to contact the first lawyer?

A: The committee said it depends on the inquiry. If a competent opinion cannot be formed without facts that require contacting the first lawyer, the second lawyer should tell the client that and obtain the necessary information, citing Rules 1.1 and 1.4(b).

Q: Is a second opinion on a settlement offer treated differently?

A: Yes. The committee characterized evaluating a settlement offer as subjective advice that may be impossible to give competently without investigating liability, damages, and credibility, likely requiring discussion with the first lawyer; the second lawyer should advise the client accordingly, citing Rules 1.1 and 2.1.

Background and rules framework

The opinion applied South Carolina RPC 1.1 (competence), RPC 1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary for the client to make informed decisions), and RPC 2.1 (a lawyer as advisor shall render candid advice), each corresponding to the like-numbered Model Rule. The committee contrasted the current rules with the superseded EC 2-30 of the former Code of Professional Responsibility.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.1 / Model Rule 1.1: competence.
• South Carolina RPC 1.4(b) / Model Rule 1.4: explaining matters so the client can make informed decisions.
• South Carolina RPC 2.1 / Model Rule 2.1: candid advice from a lawyer as advisor.

Other opinions cited:

• S.C. Bar Ethics Adv. Op. 85-26: prior guidance under EC 2-30 limiting such consultations.

See also

• SC Bar Ethics Op. 97-04: Diligence and Continuances
• SC Bar Ethics Op. 97-01: Seller-Paid Closing Fees

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-07/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 97-07

The Client is represented by Attorney A in a pending legal matter. The Client has questions and concerns about the manner in which Attorney A is handling the legal matter and wishes to discuss these matters with Attorney B. The Client does not wish to terminate his employment with Attorney A; nor does the Client wish to jeopardize his relationship with Attorney A by disclosing to Attorney A that he wished to discuss these matters with Attorney B.

Questions:
May Attorney B without obtaining the consent of Attorney A discuss with the Client a pending legal matter where Attorney B knows the Client is represented by Attorney A with respect to the matter?

Summary:
There is no proscription in the Rules of Professional Conduct against an attorney discussing a pending legal matter with a client who is represented by another attorney with respect to the matter. However, the Rules of Professional Conduct may require Attorney B to qualify or clarify with a client any conclusions or opinions Attorney B renders with respect to the representation of Attorney A.

Opinion:
The prior Code of Professional Responsibility counseled against an attorney discussing a pending legal matter with the client when that attorney knew that the client was represented by another attorney in the matter. EC 2-30 provided in part: ". . . .If a lawyer knows a client has previously obtained counsel, he should not accept employment in the matter unless other counsel approves or withdraws, or if the client terminates the prior employment."

Opinion Number 85-26 issued by this Committee based on EC 2-30 indicated that Attorney B would be "extremely limited" in what he might discuss with the Client regarding the representation of Attorney A.

Under the present Rules of Professional Conduct, there is no proscription or prohibition comparable to EC 2-30; therefore, Attorney B would not be prohibited from discussing with the Client matters concerning the pending representation of the Client by Attorney A. In consulting with the Client, Attorney B should give deference to and comply with other provisions of the Rules of Professional Conduct which may limit or qualify any opinion or conclusion Attorney B reaches with respect to the representation by Attorney A. These limitations and qualifications depend upon the nature of the inquiry of the Client. For the purpose of this opinion, such inquires have been categorized into three types: 1) matters of attorney conduct or client relations, 2) objective legal advice, and 3) subjective legal advice.

With respect to the any of the foregoing Attorney B should familiarize himself with the underlying facts of the inquiry. If he cannot do so without contacting Attorney A, he should so inform the Client and indicate to the Client that an informed and competent opinion or conclusion cannot be given without doing so. (Rules 1.1, 1.4 (b))

Matters of attorney conduct or client relations Attorney B would not be prohibited in discussing with the Client concerns the Client had regarding the conduct of Attorney A toward the Client or toward other persons or parties. Attorney B should be cautious to clarify conclusions of the Client (e.g. "Attorney A rarely communicates with me and seems unconcerned about my case.") before responding to the inquires of the Client.

Objective legal advice Where legal matters are clear and the Client simply wishes a second opinion, Attorney B is not prohibited from discussing this issues with the Client and rendering a second opinion. For example, the Client requested Attorney A to include in a tort action a cause of action for alienation of affection where upon Attorney A indicated to the Client that no such cause of action exists in South Carolina. The Client was not satisfied with that advice and sought a second opinion from Attorney B as to whether such a cause of action exists. Attorney B could render such an opinion if he so desires without further inquiry.

Subjective legal advice Where the Client wishes to obtain advice from Attorney B in the form of a second opinion or otherwise based upon a subjective opinion rendered by Attorney A, prior to rendering such advice Attorney B should carefully consider the basis of the advice of Attorney A. For example, Attorney A represents the Client in a personal injury action and has conveyed to the Client a settlement offer received from the opposing party. It may be extremely difficult, if not impossible, for Attorney B to give a competent second opinion without undertaking an investigation of the issues of liability, damages, credibility of witnesses with respect to disputed facts, etc. It would likely be necessary for Attorney B to discuss these matters with Attorney A, and Attorney B should advise the Client accordingly prior to giving any opinion or advice. Failure to do so may cause Attorney B to run afoul of Rule 1.1 and, possibly, Rule 2.1.