Can a lawyer contact a former client, now represented by new counsel, to warn about the new lawyer's possible malpractice?

Plain-English summary

The inquiring lawyer asked about his obligations to a former client who was now represented by new counsel, regarding the subject matter of the new representation. The inquiry focused on whether the lawyer should contact the former client about possible legal malpractice by the new lawyer committed during the resolution of the matter that both lawyers had handled for the same client.

The committee responded that the inquirer no longer represented the client and that all the matters at issue occurred after the new lawyer took over. The client had chosen another lawyer, and the inquirer appeared to have met his obligations as withdrawing counsel by briefing new counsel about the case, including the claim for reasonable attorney's fees. Absent authorization by law, which the inquirer had not provided, the inquirer was precluded from making unilateral contact with the former client that formed the substance of the inquiry. The committee said such unilateral contacts are not required by RPC 1.15 and, more importantly, that such contact would undermine the attorney-client relationship that RPC 4.2 serves to protect.

The committee noted that the inquiry seemed to presume the new lawyer had probably committed malpractice and may not have consulted with or been guided by the former client's decisions. Because the committee's purview is limited to inquiries about the inquirer's own conduct and not that of other lawyers, it said it could not respond to that matter.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. At the time, Washington's RPC 1.15 governed declining or terminating representation (the subject now in Model Rule 1.16; Washington renumbered this provision to RPC 1.16 in the 2006 revisions). 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 Treat this page as historical context, not current guidance.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 contact a former client who now has a new lawyer?

A: No. The committee said that, absent authorization by law, the lawyer was precluded from making unilateral contact with the former client about the subject of the inquiry, because such contact would undermine the attorney-client relationship RPC 4.2 protects.

Q: Did the withdrawal rule require the lawyer to make that contact?

A: No. The committee said such unilateral contacts are not required by RPC 1.15 (the then-current Washington rule on declining or terminating representation), and that the inquirer appeared to have met his obligations as withdrawing counsel by briefing new counsel.

Q: Would the committee say whether the new lawyer committed malpractice?

A: No. It said its purview is limited to the inquirer's own conduct, not that of other lawyers, so it could not respond to the assumption that the new lawyer had committed malpractice.

Background and rules framework

The opinion applies Washington RPC 4.2 (communication with a person represented by counsel; corresponding to Model Rule 4.2) to bar a lawyer from unilaterally contacting a former client now represented by new counsel. It also references RPC 1.15, which in Washington's pre-2006 numbering governed declining or terminating representation (the subject of Model Rule 1.16), to explain that the withdrawal duties did not require the contact.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a person represented by counsel)
• Model Rule 1.16 / Washington RPC 1.15 (declining or terminating representation; Washington's pre-2006 numbering)

See also

• WSBA Ethics Op. 1000: Contact With a Represented Opposing Party
• WSBA Ethics Op. 1307: Adverse Party Contacts the Lawyer Directly
• WSBA Ethics Op. 1131: Ex Parte Contact Through a Collection Agent

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1181

Original opinion text

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

Advisory Opinion: 1941
Year Issued: 2000
RPC(s): RPC 1.15; 4.2
Subject: Neglect of a client

[Editor's Note: Ethics inquiry # 1941 concerns the RPC’s and neglect of a client.]

The Committee has reviewed your inquiry and determined the following:

The inquiring lawyer poses a question about his obligations to a former client who is now represented by new counsel, regarding the subject matter of new counsel’s representation. The inquiry focuses on whether the inquirer should contact the former client about the possible legal malpractice by the new lawyer committed during the resolution of the matter that was the subject of both lawyers’ representation of the same client.

The committee’s response to the inquiry is as follows: The inquirer no longer represents the client and all the matters that are the subject of the inquiry occurred after the new lawyer took over representation of the client. The client chose another lawyer and the inquirer appears to have met his obligations, as withdrawing counsel, by briefing new counsel about the case, including the claim for reasonable attorney’s fees.

Absent authorization by law, which the inquirer has not provided, the inquirer is precluded from making unilateral contact with the former client that forms the substance of the inquiry. Such unilateral contacts are not required by RPC 1.15. More importantly, such contact would undermine the attorney-client relationship that RPC 4.2 serves to protect.

The inquiry seems to presume that the new lawyer has probably committed malpractice and may not have consulted with, and been guided by, the decisions of the former client. Since the purview of the committee is limited to dealing with inquiries concerning the inquirer’s own conduct and not that of other lawyers, the committee may not respond to that matter.