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.