Bar Counsel Notes: Communication with Person Represented by Counsel

A prospective client requests a meeting with Lawyer regarding her personal injury claim. In her initial phone call to Lawyer she mentions that she has a current attorney but wants to discuss possibly hiring Lawyer to replace that attorney. Will Lawyer's meeting with that potential client be a violation of M. R. Prof. Conduct 4.2 (Communications with a Person Represented by Counsel)?

No. Rule 4.2 does not preclude a lawyer's communication with a represented person who is seeking a second opinion from a new attorney. Comment [4] states that the rule does not preclude a lawyer's "communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter." Ethics opinions issued by the American Bar Association on this question have offered a rationale that the lawyer consulted for such a second opinion is not then acting "in representing a client."

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.