伦理意见215

Communication With Potential Client Currently Represented by Other Counsel

A lawyer is not prohibited by the Code of Professional Responsibility or the 职业行为准则 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.

适用的代码

• DR 7-104(A)(1)(与不利利益方沟通.)
• DR 2-104(需要法律服务的建议).)

适用的规则¹

• •规则4.2(a)(澳门赌场官网与对方的通讯.)

调查
The inquirer is an attorney who was retained to represent a client in a matter on which the client was then being represented by 其他 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. 这位前澳门赌场官网还要求支付13美元.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.

讨论
There is no provision of the Code of Professional Responsibility or the 职业行为准则 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(与不利利益方沟通)规定:

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

(1) Communicate or cause an其他 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 其他 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? 在我们看来，DR 7-104并没有禁止这样的交流. Neither the text of the rule itself nor the purpose underlying the rule admits of such an interpretation.

规则的标题, 与不利利益的一方沟通, 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, 因为此时澳门赌场官网还没有客户. The communication which is prohibited is with “a party [the lawyer] knows to be represented” without consent of “such 其他 当事人的澳门赌场官网——指的是 其他 party can only mean a party 其他 than the party being represented by the lawyer seeking the communication. 职业行为准则.2(a)(澳门赌场官网与对方的通讯) is virtually identical to DR 7-104(A)(1). 因此，在新规则下，结果将是一样的.

DR 2-104禁止澳门赌场官网提供 不请自来的 advice to a layperson from accepting employment resulting from the advice under two circumstances, 建议中包含了一个错误的陈述, 欺诈, 误导或欺骗, 如果建议涉及强迫或其他越权行为. 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 职业行为准则, Rule 7.1(b) prohibits solicitation of employment by any of several inappropriate means, 包括虚假陈述和不当影响.

最后, 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 法律道德 Committee Opinion 168.

调查没有. 90-5-22
1990年10月16日通过

1. 《澳门赌场官方软件》自1991年1月1日起生效. 它们被引用为规则_____. 《澳门赌场官方软件》引用DR ______.
2. 当然, 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 其他 such conflict that would prevent the lawyer from taking on this particular client.