December 2018

Appellate lawyers are rarely the first lawyer on the case. Sometimes, the trial lawyer stays on for the appeal. And sometimes the appellate lawyer was part of the trial team. But appellate lawyers are very often the lawyer who renders a second opinion. Frequently trial and appellate lawyers are consulted to render a second opinion or as a possible substitute for previous counsel. And I’ve been thinking about how to handle these things lately and wanted to share a few thoughts.

What’s the Ethical Response?

It’s perfectly okay to communicate with a person presently represented by counsel who is seeking to hire a different lawyer or who is seeking a second opinion. Comment 1 to Rule 4.2 of the Georgia Bar Rules provides as much. The rules do not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”

However, I’ve often been told that the rules of ethics are the bare minimum of what we should do. And some advice is in order about the most professional response where counsel seeks a second opinion.

Not All Clients Fit with All Lawyers

A client has the right to switch lawyers during a case. And a client’s decision to do so does not make previous counsel a bad attorney. Not all clients are for all lawyers. And some “fits” are better than others.

Think About The Big Picture

Clients come and go. But your colleagues are with you for your career. So, there are a few things to avoid. The first essential rule is that, no matter how dissatisfied the client may be with current counsel, do not speak negatively about the attorney. And I will generally require the client to inform current counsel that she intends to consult with me. Also, should I take on the case, I will never become the client’s agent to negotiate for the return of the fee from previous counsel. I tell the client that I will speak solely about the client and the matter at hand. I will refrain as much as possible from discussion about the other lawyer. And if the lawyer is someone I know and respect I make it appoint to speak positively about that lawyer. If there were ever a moment to think of the golden rule, it is where you are being brought in for a second opinion. Finally, if it is at all possible, I will work to become previous counsel’s teammate rather than the replacement. Whether a team situation is appropriate depends upon the lawyer, the client, and the dynamics of that relationship.

A Second Opinion is Not Necessarily a Substitute Opinion

While the law is malleable, I’ve reached a point in my career where I can generally know how things are likely to turn out. And generally a situation is what it is. Sometimes, I’m the fifth lawyer on the case or my opinion is being sought because the client does not like the truth as revealed by previous counsel’s research. It is important to be up front about the fact that the client may spend money on me in addition to what has previously been spent and find himself in the exact same situation. Indeed, a common refrain from clients to their retained lawyer is the following: “I could have had an appointed lawyer and gotten this result.” And the client may not be wrong. The skill, experience, workload, and reputation of the lawyer matter, but no lawyer has the power to alter reality, the laws of physics, or an armed robbery captured on video plus a Mirandized confession.

It is rare moment where the appellate lawyer is the first lawyer on the case. And if you are taking over with a new client and case, then congratulations. However, a big-picture approach will keep you away from difficult clients and help you navigate a second opinion situation with grace and professionalism.