Kansas Bar Journal
Vol. 76 No. 1.
Thinking Ethics: Acceptable Interference: The Ethics of Giving a Second Opinion
Vol. 76 No. 1 January 2007Thinking Ethics: Acceptable Interference: The Ethics of Giving a Second OpinionBy J. Nick Badgerow Most clients value the relationship they have with their lawyers. Lawyers serve as guides, spokesperson, counselors, protectors, and friends through difficult times. At least equally, lawyers value their relationships with clients, who serve as a source of pride, interesting work - and income. Therefore, the relationship between lawyer and client should not lightly be interfered with.
One protection enjoyed by the attorney-client relationship is found in the Model Rules of Professional Conduct (MRPC).(fn1) Rule 4.2 (Rule) states:
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.(fn2)
Much of the debate over Rule 4.2 has related to whether the contact with the represented party is "about the subject of the representation,"(fn3) whether an employee of a represented corporate employer is a "client,"(fn4) or whether the communication is otherwise "authorized by law," despite the fact that the person is represented by counsel.(fn5)
However, on its face, the Rule would appear to prohibit communications between a lawyer and a person represented by other counsel, where the person seeks a "second opinion," that is, seeks advice about the advice, strategy, or actions of the person's lawyer. May a lawyer talk to another lawyer's client, when that client seeks a second opinion? Or would such communications be ethically prohibited by Rule 4.2? Must the second lawyer have permission from the lawyer representing the client, before speaking with them?
The answer to these questions lies in an analysis of Rule 4.2, and leads to the conclusion that such contacts are not unethical or inappropriate.
Rule 4.2 prohibits contacts with represented parties by other lawyers in the course of their "representing a client." The lawyer who has been requested to give a "second opinion" is not representing a client, and so the Rule should not be implicated.(fn6) A lawyer does not...