Ethics FAQs - Duties to other Lawyers and their Clients.

The ‘no contact rule’ differs depending on whether it is in relation to a case in court, or some other matter. 

Where acting for a party in relation to a case in court, s 18.4 of the Solicitors Rule 2007 states that you must not deal directly with the other solicitor’s client unless:
- the other solicitor has consented, or
- you believe on reasonable grounds that the circumstances are so urgent as to require you to do so and the dealing would not be unfair to the other solicitor’s client, or
- you are just enquiring if the person is represented and if so by whom.

Where there is an insurance company involved,see s 18.5 of the Rule.

For non-court related matters, s 25 of the Rule states that you must not communicate directly with the other party, if you know another solicitor is currently acting for them, unless: 
- the other solicitor has consented, or
- the circumstances are so urgent as to require you to do so and the dealing would not be unfair to the other party , or
- where you have been unable to obtain a reply from the other party’s solicitor. (This part of the rule sets out a process you must follow to be permitted to communicate directly with the other party, and this process must be strictly followed – refer to s 25.1.1 for full details).

There is a further limited exception where your client instructs another solicitor.  Section 25.2 states that you may, after notifying the other solicitor, communicate with your former client for the purpose of confirming your former client’s instructions and arranging for the orderly transfer of the matter. It is clear that this should not be used as an opportunity to entice the client back

The ‘no contact rule’ provides protection to an opposing party. If permitted direct contact you may be able to secure damaging admissions, or access privileged material, or undermine the other party’s confidence in their lawyer.  Another danger is that you risk becoming a witness in your own case if there is a dispute about the terms of the communication. See Legal Services Commissioner v Bradshaw [2008] LPT 9, para 26 – a case about a barrister, to whom a similar rule applies.

Where the other party is a corporation, the rule applies to its principal officers.  Again, see LSC v Bradshaw para 26, (footnote 29).

The above rules also apply where the other party is represented by a barrister.
 

A.   Unless one of the exceptions from s18 or s25 of the Solicitors Rule 2007 applies, you must avoid speaking to them about the matter or listening to what they have to say.

If this is unavoidable, for instance if a phone call is put through to you or they approach you in person, then as soon as you realise who they are, you should immediately tell them that you cannot speak to them about the matter or listen to anything they have to say, and that any communication has to be through their own solicitor.  Immediately terminate the conversation.

Yes. There is nothing unethical in principle about providing a second opinion. You may also decline to act, as solicitors are not subject to the ‘cab rank rule’ that barristers are, so the terms upon which you agree to act are largely personal.

There is no obligation to inform the other solicitor of the instructions. Client consent to inform the other solicitor would be required should you choose to do so. If the client refuses consent, you can refuse to act on that basis.

The client should be advised of the conditions under which you will act. They should also be aware that by obtaining a second opinion the other solicitor may terminate their retainer either under s 6.1 of the Solicitors Rule 2007 and the common law (see Rigoli Lawyers v Arman [2009] FamCA 42 at [39],[40]), or the express terms of a retainer or costs agreement. The potential client should also be warned of the consequences of the current solicitor terminating the retainer including any additional delay and cost, and the outgoing solicitor’s right to assert a lien.

Avoid undermining the client’s relationship with the other solicitor (subject to providing the client with full and frank advice as necessary) and do not seek to entice the client to transfer their instructions to you.

See also
- QLS Specialist Accreditation Scheme Handbook 2011, Rule 6.3 (on page 29)