When Your Opinion is a Second Opinion
July 21, 2011
Have you ever had someone, who is already represented by counsel in a matter, call you wanting a second opinion about how his case is being handled? Giving an honest assessment of the person’s case, including your thoughts about how the attorney is handling the matter, would make most of us a bit uneasy. But an honest assessment is exactly what the person is looking for and exactly what you should give him should you decide to consult with him. Rule 4.2, Comment 1 says that the prohibition against communicating with persons represented by counsel does not extend to represented persons who are seeking a second opinion about their legal situation. Under these circumstances, an attorney, not already involved in the matter on behalf of another client, is free to consult with this person. The Comment to Rule 4.2 also says the consulting attorney should, but is not required to, inform the first attorney of his participation and advice. Disclosure can only be made, however, with consent from the person with whom the attorney consulted, and 9 times out of 10, that person would not want his attorney to know he has consulted with other counsel.
So yes, you can talk to the person, give them your honest assessment, and collect a consultation fee for doing so. Even when critiquing how the case is being handled, as a matter of professionalism, you should not disparage the other attorney, but simply suggest how you would have handled it differently. If the person says he or she would like to hire you to conclude his matter, you should inform the potential client that you cannot undertake representation while they are represented by other counsel. You would be happy to speak with them about representation once the representation by the first counsel has concluded. You should not be involved in “firing” the other attorney, nor should you encourage the potential client to do so. Your obligation is to give an honest assessment of the situation, which may or may not be critical of the first attorney. This information can then be used by the person to make an informed decision about his representation.