Ethics Opinion 215

Communication With Potential Client Currently Represented by Other Counsel

A lawyer is not prohibited by the Code of Professional Responsibility or the Rules of Professional Conduct from communicating with a person who is currently represented by counsel for the purpose of determining whether such person may wish to retain the lawyer and discharge the current lawyer.

Applicable Code

• DR 7-104(A)(1) (Communicating with One of Adverse Interest.)
• DR 2-104 (Suggestion of Need of Legal Services.)

Applicable Rule¹

• • Rule 4.2(a) (Communication Between Lawyer and Opposing Parties.)

Inquiry
The inquirer is an attorney who was retained to represent a client in a matter on which the client was then being represented by other counsel. The client was apparently dissatisfied with the first attorney’s representation. The inquirer wrote the first attorney advising him that the inquirer had been retained and asking that he turn over the client’s file. The client had met all her financial obligations to the former attorney. The former attorney wrote the inquirer accusing her of unethical conduct, apparently on the theory that the inquirer spoke with the client on the subject of the representation before the client had discharged the former attorney. The former attorney also demanded payment of $13.75 to cover photocopying the client’s file and postage to mail it to the new attorney.

The inquirer asks for the Committee’s views on whether it is unethical for an attorney to offer advice and legal services to a person who is already represented by counsel and who expresses dissatisfaction with his or her current attorney.

Discussion
There is no provision of the Code of Professional Responsibility or the Rules of Professional Conduct which prohibits an attorney from conferring with a potential client who is already represented by counsel on the matter. Nevertheless the Committee believes there is a common misconception among some members of the bar that such contact is prohibited until after the client has first discharged the prior lawyer.

DR 7-104 (Communicating with One of Adverse Interest) provides:

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Does DR 7-104(A)(1) prohibit a lawyer from communicating with a person who is already represented by counsel for the purpose of having that person possibly retain the lawyer and discharge the prior lawyer? In our opinion DR 7-104 does not prohibit such communication. Neither the text of the rule itself nor the purpose underlying the rule admits of such an interpretation.

The title of the rule, Communication With One of Adverse Interest, indicates that the represented person with whom the lawyer may not communicate without permission is a party adverse to that lawyer’s client, not a person who has sought the lawyer’s advice and representation to replace an attorney previously retained for the matter.²

The rule refers to communication “during the course of [the lawyer’s] representation of a client”—a lawyer consulting with a potential client is not engaging in a communication during the course of representation, since at this point the lawyer does not yet have a client. The communication which is prohibited is with “a party [the lawyer] knows to be represented” without consent of “such other party[’s]” lawyer—the reference to other party can only mean a party other than the party being represented by the lawyer seeking the communication. Rule of Professional Conduct 4.2(a) (Communication Between Lawyer and Opposing Parties) is virtually identical to DR 7-104(A)(1). Therefore, the result would be the same under the new rules.

DR 2-104 prohibits a lawyer who has given unsolicited advice to a layperson from accepting employment resulting from the advice under two circumstances, where the advice includes a statement that is false, fraudulent, misleading or deception, and where the advice involves coercion or other overreaching. There is nothing in DR 2-104 which prohibits a lawyer from giving advice to a person already represented by counsel when the client has sought the lawyer’s advice. The analogous provision in the Rules of Professional Conduct, Rule 7.1(b) prohibits solicitation of employment by any of several inappropriate means, including false statements and undue influence.

Finally, although we were not asked to comment on the former lawyer’s demand for payment to photocopy and mail the file, we note that we have previously addressed a client’s right to have a former lawyer provide file materials to the current lawyer in Legal Ethics Committee Opinion 168.

Inquiry No. 90-5-22
Adopted October 16, 1990

1. The Rules of Professional Conduct are effective on January 1, 1991. They are cited as Rule _____. The Code of Professional Responsibility is cited as DR ______.
2. Of course, the lawyer may not represent the client in any event if the lawyer has a conflict of interest. DR 5-101. Our opinion presupposes that there is no other such conflict that would prevent the lawyer from taking on this particular client.