A close family member is diagnosed with a non-life-threatening but life-altering medical condition. There are few treatment options, all with different side effects and rates of success. The doctor recommends a treatment, but family members fear making the wrong decision. The family trusts the doctor, but there is a lot at stake. They decide to get a second opinion.
Second opinions are standard in medical practices, so why not in the legal realm?
FACT: LAWYERS ARE HUMAN
Lawyers often hold their client’s metaphorical life in their hands. The outcome of a case could lead to financial ruin, losing custody of a child, eviction from a home, or life in prison, to name a few. Even cases that don’t seem life altering to the lawyer or a similar outside perspective can have a huge impact on a client. This should not be taken lightly by any lawyer.
As advisors, lawyers guide clients and assist them in making decisions that are in their best interest. However, lawyers are human and, though some may disagree, lawyers are not always right and do not know everything. Therefore, if a client is uncomfortable with recommendations made by their lawyer or simply wishes to hear a different perspective or find other options, the client is entitled to a second opinion. Some lawyers mistakenly believe that they cannot review a case currently handled by another attorney in fear of violating MRPC 4.2, but this is an improper reading of the rule. The rule prohibits opposing counsel from communicating with a party represented by counsel. MRPC 4.2 states:
(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
When a client comes in for a second opinion, the advising lawyer is not representing a client. They are communicating with a potential client. In fact, some of the rules encourage a second opinion. MRPC 1.8(a)(2) and the new MRPC 1.191 provide that a lawyer must give a client an opportunity to have independent counsel review an agreement between the lawyer and client.
A REAL-LIFE EXAMPLE
In practice, I represented a client in a contentious divorce with a lot at stake. The client’s employer provided profit sharing and ongoing bonuses which amounted to millions of dollars in future income. Because I am not a tax practitioner, I included in my fee agreement that tax advice was not included, so we consulted with a tax professional. However, there were a few alternatives regarding allocating marital assets in relation to the future income that I discussed in detail with the client and provided him with my recommendation. The client and I were on very good terms and while he trusted me, I could sense hesitation as the wrong decision could cost him millions in the long run.
I suggested that he get a second opinion. He was reluctant — he didn’t want me to think he was second guessing my legal opinion — but I reminded him that it was his life and his future at stake. He is the client, and my job is to ensure that he is fully informed and can make a decision based upon all evidence and information. I told him I would not at all be offended and believed that it was the best course of action to ensure that our attorney-client relationship was on solid footing.
The next step was selecting an attorney to review the materials limited to the financial division of marital property. I advised the client that I would prepare the materials and he could meet with counsel of his choice to review. However, the client asked that I participate in the meeting and asked me to suggest attorneys to provide the review. I was leery of giving names, but after some thought, I determined that it was not a conflict of interest, and we were both on the same side. I provided names of the best local attorneys who handled high-stakes divorces that were not in conflict with the opposing party. However, I encouraged the client to review all three attorneys and select one without any additional input from me. Once the client selected the attorney, I prepared the materials. The client and attorney entered into a limited-scope fee agreement. The client and I agreed that I would not provide the attorney with my proposed course of action; I would allow him to reach his own conclusions. We met with the attorney, who provided his advised course of action and later committed it to writing. Fortunately for me, his advice was the same as mine. However, even if it were different, the client was well informed in accordance with MRPC 1.4 and could not later claim that I did not provide competent representation under MRPC 1.1.2
Some lawyers are afraid of clients getting a second opinion for fear of losing them, but showing a client the willingness to take the risk to ensure they have all the pertinent information to make an informed decision will only strengthen the attorney-client relationship. If the lawyer and client disagree or the client is unsure, the lawyer should focus more on maintaining a positive working relationship with the client, which may prevent a future grievance or malpractice claim.
The practice of law is not a science. Options presented by lawyers are based on experience whereas decisions made by clients are subjective and based on the information they receive. A person receiving a medical diagnosis that could impact their life significantly may wish to obtain a second opinion regarding their options. The same holds true in the legal field. When a client faces a legal matter, a second opinion may be worthwhile. Lawyers should embrace the idea of their client requesting and/or obtaining a second opinion. A fully informed client not only strengthens the trust between the lawyer and client but can prevent a breakdown in the attorney-client relationship that could later result in a grievance or malpractice claim.