Can a lawyer discuss a client's matter with a mentor or on a professional listserv outside the firm, and must the consulted lawyer check for conflicts first?

Plain-English summary

The opinion considers two consultation settings. Lawyer A, in a mentoring program, wants to discuss a client's matter with his mentor Lawyer B, who is in a different firm. Lawyer C, a sole practitioner, belongs to an email listserv and wants to get advice from colleagues about an unusual situation in a case. The opinion asks whether Lawyer A may disclose client information to Lawyer B (yes, qualified), whether Lawyer B may consult without checking for conflicts (see discussion), and whether Lawyer C may relate the details on the listserv (yes, qualified). It draws on ABA Formal Opinion 98-411.

For the consulting lawyer, the opinion applies Oregon RPC 1.6, which protects all information relating to the representation and permits disclosure without consent only when impliedly authorized to carry out the representation or under a specific exception. The opinion concludes that consultations general in nature, such as asking for a case citation or discussing a point of law, do not implicate the rule, and that questions framed as hypotheticals generally do not either. But framing a question as a hypothetical is not a complete solution: if the facts are unique enough that outsiders could identify the client, the lawyer must first obtain the client's informed consent, which may include explaining that disclosure could waive the attorney-client privilege. The lawyer should avoid consulting someone likely to become adverse counsel and, especially on a listserv whose members may represent all sides, risks giving sensitive information to a current or future adversary; one protection is an agreement that the consulted lawyer will keep the information confidential and not take adverse representation.

For the consulted lawyer, the opinion concludes Lawyer B assumes no duty to Lawyer A's client merely by consulting, and would not violate Oregon RPC 1.6 by later using the information or representing a party adverse to Lawyer A's client. But the opinion warns, using the ABA's lease example, that if the consulted lawyer's guidance ends up harming a client of the consulted lawyer's firm, the consulted lawyer may have to inform that client of the consultation, and if the lawyers had a confidentiality agreement, the consulted lawyer and firm could be disqualified under Oregon RPC 1.10. The opinion concludes the consulted lawyer can avoid these problems by getting the consulting lawyer to identify the client up front so conflicts can be checked, and by seeking an agreement that the consultation creates no obligations to the consulting lawyer's client.

In practice

This opinion (revised 2016 from a 2011 opinion) interprets the current Oregon Rules of Professional Conduct, but it predates much current listserv and social-media practice and is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that lawyer-to-lawyer consultation is valuable and often part of providing competent representation, but the consulting lawyer must not reveal protected client information without consent when the facts could identify the client, and must weigh the risk of disclosing to a potential adversary. Per the opinion, the consulted lawyer takes on no automatic duty to the other lawyer's client, but to protect the consulted lawyer's own clients may need to learn the client's identity and check for conflicts before consulting.

Common questions

Q: Can a lawyer ask a mentor or a listserv about a problem in a client's case?

A: Yes, qualified. The opinion concludes a lawyer may consult outside lawyers, but must protect confidential client information under Oregon RPC 1.6, so general or genuinely hypothetical questions are fine while identifying details require client consent.

Q: Is framing the question as a hypothetical enough to protect confidentiality?

A: Not always. The opinion concludes that if the facts are unique enough that outsiders could identify the client, the lawyer must first obtain the client's informed consent, even when the question is posed hypothetically.

Q: Does the lawyer who gives advice owe duties to the other lawyer's client?

A: No, not by the consultation alone. The opinion concludes the consulted lawyer assumes no obligations to the consulting lawyer's client and may later use the information or take adverse representation, absent an agreement otherwise.

Q: Should the consulted lawyer check for conflicts before giving advice?

A: It is prudent. The opinion concludes the consulted lawyer may need to check conflicts and obtain the client's identity up front to avoid harming the consulted lawyer's own clients and to avoid disqualification risk if a confidentiality agreement is made.

Background and rules framework

The opinion interprets Oregon RPC 1.6 (confidentiality of information relating to the representation), Oregon RPC 1.7(a) (conflicts of interest), Oregon RPC 1.0(g) (informed consent), and Oregon RPC 1.10 (imputed disqualification), corresponding to Model Rules 1.6, 1.7, and 1.10. It adopts the framework of ABA Formal Opinion 98-411 on lawyer-to-lawyer consultation.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.6(a) / Model Rule 1.6 (confidentiality)
• Oregon RPC 1.7(a) / Model Rule 1.7 (conflicts of interest)
• Oregon RPC 1.0(g) / Model Rule 1.0 (informed consent)
• Oregon RPC 1.10 / Model Rule 1.10 (imputed disqualification)

Other opinions cited:

• ABA Formal Ethics Op. No. 98-411 (ethical issues in lawyer-to-lawyer consultation)

See also

• ABA Formal Op. 98-411: Lawyer-to-Lawyer Consultation
• OSB Ethics Op. 2011-185: Withdrawal From Litigation and Client Confidences
• OSB Ethics Op. 2005-150: Inadvertent Disclosure of Privileged Information

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2011-184.pdf