Celebrating 10 years! 2007-2017

Other Lawyer's Client In Contact Re. Case

Asking if she can fire him and hire us. I of course told her redemptionsong04/15/17
You are way off base here. You can talk to them. They are ruralattorney04/15/17
Maybe it is more of a custom than an actual rule. And no I d redemptionsong04/15/17
What are you asking then? This post suggests you already did vohod04/15/17
Who said that you need to bad mouth the other attorney? Jus ruralattorney04/15/17
I have no idea why you would tell the other attorney. I'm gu tcpaul04/15/17
Ethics rules aside, the better question to ask is why the cl majorkong04/15/17
The place where I observed this in action before was a prett redemptionsong04/15/17
Ethically, clients are free to seek a new attorney for whate qport04/17/17
Happened to me once where I represented the husband of husba shitlawsf04/15/17
Of course you can talk to them. I don't know why so many law fettywap04/15/17
It's a misunderstanding or may extrapolation of the rule aga thirdtierlaw04/15/17
redemptionsong (Apr 15, 2017 - 2:23 am)

Asking if she can fire him and hire us. I of course told her we could not talk to her while she is represented? Can I/Should I let the current lawyer know if his client is in touch? I have seen this happen before but have not done my own research to see if this practice is ethical.

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ruralattorney (Apr 15, 2017 - 6:14 am)

You are way off base here. You can talk to them. They are coming to you for representation.

ABA Model Rule 4.2, for example, exempts "Communications initiated by a party seeking advice or representation from an independent lawyer of the party's choice."

I hate to say it, but your first encounter with this potential client resulted in your telling them that you don't know the rules. You can probably kiss them goodbye.

As always, check your state's rules, but I am not aware of any state that prohibits this.

And it is not your business to contact their current lawyer without their permission. Why would you even think of doing that?

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redemptionsong (Apr 15, 2017 - 8:10 am)

Maybe it is more of a custom than an actual rule. And no I do not have a rule in front of me on which is why I asked the board. Perhaps no rule is in place but something similar to the generally agreed on prohibition on not speaking badly of other professionals. As noted, I have seen this happen before as a courtesy between professionals. The last thing anyone needs is lawyers running around poaching clients from others or lawyers not retained giving represented people second opinions on half the information so they can run back to their retained attorney and tell "...said." If they come to me already represented, I do not see them as a potential client until they discharge their current attorney who will probably maintain a lien on their case.

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vohod (Apr 15, 2017 - 8:36 am)

What are you asking then? This post suggests you already did what you think is right. No I wouldn't tell the lawyer anything about it because he could be a huge jerk, be unresponsive, etc. and generally sounds like a waste of your time.

Forget about this and find other clients.

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ruralattorney (Apr 15, 2017 - 9:46 am)

Who said that you need to bad mouth the other attorney? Just tell the client what you think about their case and what your strategy would be going forward.

Not every fit is a good fit. While I generally used to avoid clients that had fired their attorney, if I knew that they had a hack for an attorney I would make an exception. But our conversation was never about their old attorney. Your rigid policy traps people with the really bad attorneys. Because, why? You'd rather support incompetent attorneys than help people? I understand what you are saying about professional courtesy, but there is room for both.

Some advice: Learn the rules. Don't create a problem where there aren't any. Forget this client and move on.

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tcpaul (Apr 15, 2017 - 10:47 am)

I have no idea why you would tell the other attorney. I'm guessing initial attorney consultations are confidential and privileged in your jurisdiction regardless of whether an attorney-client relationship is formed.

But that said, I like where your head is at. You seem to want to do the ethical thing even if you are misguided.

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majorkong (Apr 15, 2017 - 12:35 pm)

Ethics rules aside, the better question to ask is why the client wants to fire the other attorney. Probably a case of unrealistic expectations on the part of the client, especially if its something like a family law issue.

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redemptionsong (Apr 15, 2017 - 1:16 pm)

The place where I observed this in action before was a pretty rural spot maybe ore tight knit and collegial than some larger markets might be. But yeah, I said nothing and cut them off. If the attorney is bad, fire him and come back to me. Here are my qualifications. To go past that is stepping into the realm of poaching. If I let them vent their spleen, I get one side of a story. How is anyone ever to know who the bad attorney is? And most of the time is the client not just wasting your time getting a second opinion?

Thanks for the feedback, especially from those of you who write in the way I hope you speak. Courtesy is good.

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qport (Apr 17, 2017 - 2:40 pm)

Ethically, clients are free to seek a new attorney for whatever reason they wish. Likewise, absent a conflict of interest attorneys are not prohibited from speaking with a prospective client even if they are represented by another attorney. This rule makes sense because otherwise you'd be forcing clients to fire their current attorney and go pro se if they even contemplated hiring someone else (since they could never even consult with new lawyers).

That said, I can think of plenty of reasons to be wary of potential clients who are already represented (may have unrealistic expectations of their case, may not have any more money, may be lawyer shopping to keep opposing parties from retaining you, etc.) but these are more business reasons than ethical ones.

Personally, while I'm happy to talk to anyone I'm always loathe to critique someone's current attorney. There may be facts about the case that the client didn't know or neglected to mention which would justify their current attorney's actions. Plus, attorney-client confidentiality only flows one way and there's no guarantee that the client won't go back to his current attorney and blab about our conversation. Our legal community is pretty small, and the last thing you want is to be the guy who will denigrate other lawyers to try and get business. Besides, I can generally tell once the client mentions their current attorney's name if the attorney is a goober or not.

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shitlawsf (Apr 15, 2017 - 9:07 pm)

Happened to me once where I represented the husband of husband and wife co-defendants. The other attorney truly sucked. Everything I told my client was discussed with his wife, I'm sure. I told her I could not advise her while I represented her husband unless he was ok with it. He was. So I told her what I thought. I never told the other lawyer because my conversation with her was confidential.

Ultimately, she stayed with her attorney. But I basically ended up negotiating a disposition that suited them both while her attorney sat idly by while I did the work. Later, they both hired me to file some post conviction motions regarding their probation.

In my view, you must get your present client's permission to speak to the co-defendant about representation. Not the co-defendant's present lawyer.

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fettywap (Apr 15, 2017 - 9:08 pm)

Of course you can talk to them. I don't know why so many lawyers think they can't. I saw this constantly when I had my own practice.

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thirdtierlaw (Apr 15, 2017 - 9:48 pm)

It's a misunderstanding or may extrapolation of the rule against speaking to a codefendant or an opposing party. But other than those two bars, that is where the rule ends.

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