Clients Aren’t Property

Lawyers don’t own their clients, and can’t stop them from talking to other lawyers about representation. That’s what the Eighth Circuit Court of Appeals, in this opinion, told a Texas attorney John Fahle when he got upset because one of his clients, Mr. Gonzalez-Lopez, realized he would be better off with California trial lawyer Joseph Low, IV and tried to hire Low.

Fahle filed a motion for sanctions, complaining that Low had talked with Fahle’s lawyer without his permission. The district court granted sanctions. Low appealed, and the Eighth Circuit (not known for its liberal veiws) reversed the sanctions order, holding that a lawyer who is not representing another party to the litigation may talk with a person represented by counsel.

I’ve talked about this issue with other lawyers before, and many of them seem to think that a lawyer has a duty not to talk to other lawyers’ clients without the lawyers’ permission. If you look at it from the point of view of the client, though, a person should be able to get second opinions and shop for replacement lawyers without worrying about offending his current counsel and jeopardizing his defense.

Not only does the unhired lawyer not have a duty to tell the hired lawyer that he is talking with the client, but he has a duty not to tell the hired lawyer without the client’s permission (the very fact that the unhired lawyer is talking with the client is covered by the attorney-client privilege).