The Committee has been asked several specific questions with respect to an attorney (the "Inquirer") being called by a potential client who already is represented by another attorney. Under the facts as described by the Inquirer, the potential client has called the Inquirer and stated that he wants to switch lawyers. He further has stated that he is dissatisfied with his current lawyer, who represents him in an ongoing personal injury action. The potential client has asked if the Inquirer's firm would be willing to represent him in that action.
First, the Inquirer has asked the Committee if it is a violation of the Rules of Professional Conduct (the "Rules") to speak with this potential client. The Committee is not aware of any Rule which would prohibit the Inquirer from speaking with the potential client under the circumstances described by the Inquirer. As a matter of fact, the potential client should be free to consult with as many lawyers as he chooses, and the Rules should not impede the potential client's ability to do so. [Although the heading of Rule 4.2 (Communication with Person Represented by Counsel) appears to apply to this inquiry, the body of Rule 4.2 clearly applies only to communications by an attorney for a party with another, represented party in the same matter.]
Second, the Inquirer has asked how far the conversation with the potential client can go. For example, the Inquirer has asked whether it is permissible to provide the potential client with a "second opinion" on the phone or in person. It is the Committee's opinion that the Inquirer should treat the potential client like any other potential client, i.e., the Inquirer should be sure to comply with all of the relevant rules, including, without limitation, Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.6 (Confidentiality of Information), 1.7 (Conflict of Interest: General Rule), and 7.1 (Communications Concerning a Lawyer's Services). Therefore, it may not be possible to provide an informed "second opinion" over the telephone, or, for that matter, in person, unless the Inquirer is competent in the required areas of law and has sufficient facts and information on which to base such an opinion. The Inquirer should be especially cognizant of the fact that the potential client may not be fully aware of and/or understand all that his current attorney is doing, and, therefore, the Committee suggests that it may be appropriate to communicate with the potential client's current attorney, provided that the potential client consents to such communication.
Third, the Inquirer has asked whether it is a violation of the Rules to respond to a question from the potential client, such as, "Do you think that I am being well represented by my current attorney?" Again, it is the Committee's opinion that the Rules do not prohibit the Inquirer from answering such a question, so long as the Inquirer has sufficient facts and information upon which to respond to the question. However, the Inquirer must be careful to maintain the Inquirer's professional independence in answering such a question, so that the Inquirer's interest in representing the potential client does not influence the Inquirer's answer to the potential client's question.
Finally, the Inquirer has asked the relationship between the foregoing issues raised by the Inquirer and the tort of intentional interference with contractual relations. A review of the substantive law relating to the elements necessary to establish such a cause of action is beyond the scope of the Committee's charge. The Inquirer should be careful to research those elements (and also to avoid any potential defamation claim). The Committee again points out, however, that there is nothing in the Rules prohibiting the Inquirer from speaking with the potential client and providing a second opinion.
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