When a lawyer asks another lawyer for advice through a bar consultation network, what confidentiality and conflict duties arise between the two lawyers?

Plain-English summary

A bar association proposed a question-referral network through which a member (Attorney B) could seek legal advice from volunteer members (Attorney A) about a client's matter without naming the parties. The advising attorney would be outside the requesting attorney's firm, would get only as much information as the requesting attorney chose, and would not receive confidential or secret information without consent; requesting attorneys would be warned not to disclose confidences or secrets without the client's informed, advance consent. The committee addressed two questions.

On revealing confidences during consultation, the controlling rule was DR 4-101(B)(1) (a lawyer shall not knowingly reveal a client's confidence or secret), informed by EC 4-2. The committee assumed that a meaningful consultation will often require Attorney B to reveal, and Attorney A to acquire, the client's confidences or secrets, a factual question outside the committee's knowledge. The anonymous-hypothetical method is an acceptable form of consultation because discussion of abstract questions of law does not compromise confidences, but the committee opined that Attorney B should obtain client consent before seeking advice where particular details or facts about the client must be revealed.

On Attorney A's duties, the committee recognized that no attorney-client relationship arises between Attorney A and Attorney B or B's client, but the consultation creates a special relationship giving rise to a reasonable expectation of confidentiality. Citing LE Op. 1453, 1546, 629, and 1601, the committee noted a duty to keep confidences can arise even outside a formal attorney-client relationship, and concluded it would be improper under DR 4-101(B) for Attorney A to reveal the contents of Attorney B's inquiry, including the fact of the consultation and what was asked. On the second question, under DR 4-101(B) and DR 5-105(D), the committee concluded that a consulted attorney who obtained confidential information may not represent a party adverse to Attorney B's client unless that client consents; as a prudent (not ethically required) precaution, Attorney A may ask Attorney B to disclose the client's identity for a conflicts check, which itself requires the client's consent.

Currency note

This opinion was issued in 1995, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. 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 ask another lawyer for advice about a client's case without violating confidentiality?

A: Under this 1995 opinion, yes if framed as an anonymous hypothetical about abstract law, but the committee opined the consulting lawyer should obtain client consent before sharing particular facts about the client that would reveal confidences or secrets.

Q: Does the lawyer who gives advice owe any duty to the consulting lawyer's client?

A: The committee held no attorney-client relationship forms, but the consultation creates a reasonable expectation of confidentiality, so the consulted lawyer may not reveal the contents of the inquiry, including the fact that the consultation occurred.

Q: Can the consulted lawyer later take a case against the other lawyer's client?

A: Not without consent. The committee concluded that under DR 4-101(B) and DR 5-105(D), a consulted lawyer who acquired confidential information may not represent a party adverse to the consulting lawyer's client unless that client consents.

Background and rules framework

The opinion interpreted former Virginia DR 4-101 (confidences and secrets), with EC 4-2, and DR 5-105(D) (no representation in a substantially related, materially adverse matter against a person previously served without consent). The confidentiality duty is now carried forward in Virginia Rule 1.6, the expectation-of-confidentiality concern in the consultation context now informs Rule 1.18 (duties to prospective clients), and the conflict bar tracks Rule 1.9.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 4-101(B); EC 4-2; DR 5-105(D) (Code of Professional Responsibility)
• ABA Model Rule 1.6 (confidentiality); Model Rule 1.9 (duties to former clients)

Other opinions cited:

• Virginia LE Op. 1453, 1546: a duty to keep confidences can arise before a formal attorney-client relationship.
• Virginia LE Op. 629: a lawyer consulted in a professional capacity at a social engagement must keep the consultation confidential.
• Virginia LE Op. 1601: a lawyer-professor would violate DR 4-101 by disclosing confidences shared by colleagues or students seeking legal advice.

See also

• VA LEO 1664: Archiving Closed Client Files
• VA LEO 1811: Former Client File Confidentiality
• VA LEO 1670: Contacting a Former Employee

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1642.pdf

Original opinion text

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

Committee Opinion
June 9, 1995
LEGAL ETHICS OPINION 1642

CONFLICT OF INTERESTS;
CONFIDENCES AND SECRETS;
REFERRAL NETWORK COMPOSED OF
AND FOR USE BY BAR ASSOCIATION
MEMBERS FOR LEGAL ADVICE
CONCERNING CASES PRESENTED IN
HYPOTHETICAL.

A bar association of Virginia attorneys wishes to maintain a question referral network
for its members, through which any member may seek legal advice, from other volunteer
members, about a client's legal matter without disclosing the names or identities of any
parties involved.
Under the hypothetical, the attorney rendering advice will not be a member of the
requesting attorney's firm and will be given only as much information about the
underlying facts as the requesting attorney deems appropriate. The attorney rendering
advice will not receive confidential or secret information without his or her advance
consent. Also, attorneys requesting advice will be admonished not to disclose any
confidence or secret of a client without the client's informed and express consent given in
advance of the consultation.
I.

Revealing Confidences and Secrets During Consultation.

You have asked the committee to consider whether Attorney A acquires confidences or
secrets of Attorney B's client, or of Attorney B himself, if Attorney B relates specific
facts underlying his client's case to enable Attorney A to answer Attorney B's
question(s)?
The Disciplinary Rule that governs this question is DR:4-101(B)(1) which requires that
a lawyer shall not knowingly reveal a confidence or secret of his client. In addition,
EC:4-2 gives further guidance by stating:
A lawyer must always be sensitive to the rights and wishes of his client and act
scrupulously in the making of decisions which may involve the disclosure of information
obtained in his professional relationship. Thus, in the absence of consent of his client
after full disclosure, a lawyer should not associate another lawyer in the handling of the
matter; nor should he, in the absence of consent, seek counsel from another lawyer if
there is a reasonable possibility that the identity of the client or his confidences or secrets
would be revealed to such lawyer. Both social amenities and professional duty should
cause a lawyer to shun indiscreet conversations concerning his clients.
The committee assumes that in order for a meaningful consultation to occur, Attorney
B will probably need to reveal, and Attorney A will likely acquire, confidences and
secrets of Attorney B's client(s). However, this is a factual determination based upon
facts outside the committee's knowledge. If Attorney B asks Attorney A a question
regarding a particular situation involving Attorney B's client(s), then Attorney B has a

Committee Opinion
June 9, 1995
duty under DR:4-101 to obtain client consent before revealing any confidences or secrets
of his clients in the process. Thus, while consulting with another and more experienced
attorney may be necessary to competent representation, the attorney must be careful not
to violate client confidentiality in the process of consulting with another attorney.
The anonymous hypothetical is regarded as an ethically acceptable form of consultation
because the consulting attorney is discreet in asking for guidance and discussions about
abstract questions of law do not compromise client confidences or secrets. See, G. Hazard
& W. Hodes, The Law of Lawyering, §§ 1.6:202 and 1.6:203 (2d ed. 1990). However,
the anonymous hypothetical approach to consultation encounters difficulties as more
details are revealed during the consultation, and seemingly innocuous information may be
harmful to the client if revealed to others. See, Kershen, The Ethics of Ethics
Consultation, 6 Professional Lawyer, Vol. 3 at 3 (May 1995). Thus, the committee opines
that Attorney B should obtain client consent before seeking advice from Attorney A,
where particular details or facts about the client or his or her case must be revealed in
order to obtain such advice.
Regarding Attorney A's duties to Attorney B and Attorney B's client, the committee
recognizes that no attorney-client relationship arises between Attorney A and Attorney B,
nor does such relationship exist between Attorney A and Attorney B's client. The
consultation described in the hypothetical creates a special relationship between Attorney
A and Attorney B which is not easy to define but which the committee will endeavor to
describe.
The relationship between Attorney A and Attorney B is best described as a simple
consultation of an attorney in his professional capacity by another attorney which, under
the circumstances given in the hypothetical, would give rise to a reasonable expectation
of confidentiality. The committee has previously opined that an ethical duty to keep the
confidences of another person can arise even before the actual beginning of an attorneyclient relationship. (See LE Op. 1453 and LE Op. 1546.) In those opinions the
hypothetical presented concerned prospective clients who were consulting attorneys
before hiring them and the committee found the consultations created expectations of
confidentiality. Similarly, in LE Op. 629 the committee opined that an attorney who was
consulted in a professional capacity at a social engagement was obligated to keep
confidential the contents of the consultation. Again in LE Op. 1601 the committee found
that a professor who was also an attorney would violate DR:4-101 if she were to disclose
to the administration of her school the confidences and secrets of academic colleagues or
students who requested her legal advice. The expectation of confidentiality that the
committee has previously recognized can be attributed to the widespread understanding
that attorneys provide confidential advice and counsel. Thus, the committee recognizes a
duty to keep confidential those consultations that occur outside formal attorney-client
relationships which nonetheless create an expectation of confidentiality. Attorneys can
avoid this situation by making it clear through a disclaimer given to the inquirer, that the
attorney cannot keep the information confidential. The committee believes this applies
with equal force when attorneys consult attorneys and cites the concept with favor in LE
Op. 1601. Thus, the committee believes it would be improper under DR:4-I01(B) for

Committee Opinion
June 9, 1995
Attorney A to reveal the contents of Attorney B's inquiry. Attorney A may not reveal the
fact that Attorney B consulted him, the nature of the consultation, what was asked and
what was discussed.
II.

Attorney A Representing a Party Adverse to Attorney B's Client.

You also ask the committee to consider whether, if Attorney A has rendered advice to
Attorney B, an independently practicing attorney, about a hypothetical question based on
facts underlying a real dispute involving Attorney B's client, and Attorney A did not
know the identities of the parties to the dispute at the time Attorney A rendered such
advice to Attorney B, may Attorney A ethically represent a party adverse to Attorney B's
client?
The Disciplinary Rule that is controlling is again DR:4-101(B) which requires that a
lawyer shall not knowingly (2) use a confidence or secret of his client to the disadvantage
of his client; and (3) use a confidence or secret of his client for the advantage of himself
or a third party Also appropriate is DR:5-105(D) which prohibits an attorney who has
represented a client from representing another client in the same or a substantially related
matter if the interest of that person is in any way adverse in any material respect to the
interest of the former client unless the former client consents.
As stated above, Attorney A does not enter into any formal attorney-client relationship
with Attorney B's client merely by answering Attorney B's questions, whether or not
these questions revealed to Attorney A any of the client's confidences and secrets.
Nevertheless, while no attorney-client relationship arises out of the consultation, the prior
legal ethics opinions cited above would clearly prohibit Attorney A from representing a
party adverse to Attorney B's client, having obtained confidential information as a result
of the consultation with Attorney B, unless Attorney B's client consents to Attorney A's
representation of such adverse party. See LE Op. 1453, LE Op. 1546 and LE Op. 1601.
Therefore, as a precaution to avoid possible disqualification of Attorney A or Attorney
A's firm, Attorney A may want to require that Attorney B disclose the identity of his or
her client, so that a conflicts check can be made, before obtaining any further information
from Attorney B. This is simply a prudent precaution and not an ethical obligation.
Attorney B will need his or her client's consent in order to disclose the client's identity.
See LE Op. 1270, LE Op. 1284 and LE Op. 1300.
Committee Opinion
June 9, 1995
Legal Ethics Committee Notes. – Editor’s Note: See Rule 1.6, Comment 7 [a]
concerning the ethical considerations of lawyer-to-lawyer consultations and “mentoring”.