No.27 Second opinions

1. Introduction

1.1. Who should read this Guidance Statement?

This Guidance Statement is for solicitors and law practices.

1.2. What are the issues?

Where a client of another solicitor asks for a 'second opinion’ in relation to the same matter, this is generally permissible, but it is nonetheless important to be aware of the ethical considerations that can arise when doing so.

1.3. Status of this Guidance Statement

This Guidance Statement is issued by the Queensland Law Society ('QLS’) Ethics and Practice Centre for the use and benefit of solicitors.

This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of the note and following the guidance it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.

This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.

This Guidance Statement represents a standard of good practice and is endorsed by the Ethics Committee of the QLS.

2. Ethical principles

ASCR   

Rules 4, 5, 9, 12 and 33 provide:

4.  Other fundamental ethical duties

4.1   A solicitor must also:

4.1.1   act in the best interests of a client in any matter in which the solicitor represents the client;

4.1.2   be honest and courteous in all dealings in the course of legal practice;

4.1.3   deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4   avoid any compromise to their integrity and professional independence; 

… .

5.  Dishonest and disreputable conduct

5.1   A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1   be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2   bring the profession into disrepute.

9.  Confidentiality

9.1   A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not: 

9.1.1   a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice; or 

9.1.2   a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client,

EXCEPT as permitted in Rule 9.2.

9.2   A solicitor may disclose confidential client information if: 

9.2.1   the client expressly or impliedly authorises disclosure; 

9.2.2   the solicitor is permitted or is compelled by law to disclose; 

9.2.3   the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations; 

9.2.4   the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence; 

9.2.5   the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or 

9.2.6   the information is disclosed to the insurer of the solicitor, law practice or associated entity.

12. Conflict concerning a solicitor’s own interests

12.1   A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.

33. Communication with another solicitor’s client

33.1   A solicitor must not deal directly with the client or clients of another practitioner unless:

33.1.1   the other practitioner has previously consented;

33.1.2   the solicitor believes on reasonable grounds that:

(i)   the circumstances are so urgent as to require the solicitor to do so; and

(ii)  the dealing would not be unfair to the opponent’s client;

33.1.3   the substance of the dealing is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom; or

33.1.4   there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is reasonable basis for proceeding with contact. 

2.1. Discussion

2.1.1. What is a second opinion?

This Guidance Statement concerns the situation where a client of one solicitor (the first solicitor) directly approaches another solicitor (the second solicitor) for another opinion about a matter in which the first solicitor is acting for the client. 

2.1.2. What is not a second opinion?

The following is not a second opinion for the purposes of this Guidance Statement:

• where the first solicitor, on behalf of their client, seeks the second opinion from the second solicitor directly;
• where the client has ceased to be the client of the first solicitor;
• where the client has yet to engage a solicitor and is obtaining preliminary advice from several before doing so;
• where the advice being sought is only in relation to a costs agreement the client has been asked to sign by the first solicitor;
• where the advice sought is whether the client has a negligence claim, or may be entitled to make a disciplinary complaint,¹ against the first solicitor; or
• where the advice is sought in relation to an unrelated matter to that which the first solicitor has been engaged by the client to act in.
  

2.1.3. Is it permissible to give a second opinion?

Yes. It is permissible to provide a second opinion and the client has the right to seek one.

This contemporary view represents a shift that has occurred over time. At one point (not so long ago), when advertising by solicitors was considered unethical and modern competition and consumer laws did not apply to professionals, second opinions – other than where they were sought by another professional – were discouraged by many professions, not just the legal profession. This is no longer the case.

2.1.4. What is the proper purpose of a second opinion?

A second opinion should be seen as a discrete piece of work, that is, to provide the client with another independent and objective assessment of some aspect of their matter. It should not involve assuming carriage of the matter or taking steps on behalf of the first solicitor’s client.

A request for a second opinion should never be approached as a ‘marketing exercise’ or an opportunity to persuade the client to leave the first solicitor and transfer their matter to the second solicitor, including by exaggerated criticisms or disparaging comments. To approach the matter in such a way – 

• would necessarily give rise to a conflict between the duty to the client and the solicitor’s own interests;²
• would necessarily compromise the second solicitor’s independence;³
• may result in the client being deprived of the competent and diligently performed legal services, to which they are entitled;⁴
• may, if it involves unjustified or derogatory comments about another solicitor, be considered discourteous;⁵
• may be dishonest;⁶
• may have a tendency to bring the profession into disrepute.⁷

Such a strategy also undermines the client’s right to obtain an objective second opinion.

If the conclusion reached by the second solicitor is that the advice provided by the first solicitor might have been negligent or was otherwise improper, then that view may of course need to be shared with the client. However, merely reaching a different conclusion should not be seized upon as an opportunity to intentionally undermine the client’s relationship with the first solicitor. It should be also remembered that any criticism of the first solicitor’s advice, even where reasonable and justified, may well be shared by the client with the first solicitor.

A second opinion should, ideally, be prepared by reference to the same underlying instructions, documents or materials used by the first solicitor, rather than by reference to, or only to, the advice provided by the first solicitor. Similarly, it would not generally be appropriate to request information on the fees being charged by the first solicitor, unless relevant to the second opinion being sought by the client.

As already noted, determining whether the original advice ought to give rise to a claim or complaint is not a 'second opinion’ at all, but should more accurately be viewed as a separate exercise entirely and care should be taken to differentiate between the two for the client. 

If as a result of a second opinion, which has been properly provided as described in this Guidance Statement, the client asks if the second solicitor would take over carriage of the matter, this generally should not give rise to an ethical issue. 

2.1.5. Do I need to contact the first solicitor?

There is no obligation to inform the first solicitor of the instructions to provide a second opinion, although there is a view that you should do so, as a matter of professional courtesy, unless the client instructs otherwise. Of course, you would need client consent to inform the other solicitor.⁸ If the client refuses consent, you may refuse to act, noting that solicitors are not subject to the 'cab rank’ rule.

It should be noted that there may also be situations where it would be clearly inappropriate to inform the first solicitor in any event, including where the first solicitor may be acting for multiple parties in the matter in addition to the client. 

There may also be situations where, quite apart from matters of professional courtesy, the first solicitor is in possession of information or documents that may be needed to provide the second opinion.⁹ The first solicitor is not obliged to provide such assistance¹⁰ while they are still acting for the client in the matter and, as their retainer has not been terminated, this would include the client’s file. The first solicitor should confirm the client’s consent before providing any such assistance or materials and may charge the client for doing so. 

On a practical level, care should be taken to ensure that if, as a result of the second opinion, the second solicitor receives instructions to act for the client, a proper transition of the matter to the second solicitor has occurred. 

Does the no contact rule apply?

No. The no contact rule applies where there is:

• another party in a matter (the ‘opposing’ party or client)¹¹;
• that party, or another party or witness in the matter, is represented by a solicitor in relation to the matter; and
• there is the risk of a solicitor ‘dealing’ directly with the other party on behalf of the solicitor’s client in the absence, or without the permission, of the other party’s solicitor.¹²

In such a situation, a solicitor may not communicate with the other party directly, other than where one of the exceptions in the Rule 33 applies. In the case of a second opinion, the second solicitor is providing advice to the same client as the first solicitor, so there is no opposing party.

Managing the client’s expectations

The client should be told at the outset of the conditions under which the second solicitor is prepared to provide a second opinion, ideally including if the client is prepared to permit contact with the first solicitor.

As noted above, providing a second opinion based upon the client’s instructions and the original documents and materials, rather than on, or only on, the first solicitor’s advice, is more likely to lead to a proper and independent assessment.

You may also consider it prudent to inform the client that is instructing you to provide a second opinion that, depending on the circumstances, this may constitute a ‘just cause’ entitling the first solicitor to terminate their retainer with the client.¹³

If the client returns for further ‘second opinions’ during the course of the matter, such that the second solicitor finds that they are being used to 'coach’ the client in their dealings with the first solicitor, or the client is clearly trying to ‘play off’ one solicitor against another, with a view to obtaining a particular opinion,¹⁴ the second solicitor should consider their position carefully before proceeding.

3. Further reading

• The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, Queensland Law Society (2014).
• QLS Ethics and Practice Centre, ‘Can I provide second a second opinion to a client where another solicitor is currently acting for that client?’ (2014).

For further assistance please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or email at ethics@qls.com.au .   

1 Legal Profession Act 2007 (Qld) s 491.

2 Australian Solicitors Conduct Rules 2012 (Qld) r 12 (‘ASCR’).

3 Ibid r 4.1.4.

4 Ibid r 4.1.3.

5 Ibid r 4.1.2.