Second Opinion or Cocktail Party Advice?


It is frequently true that attorney's opinions are based upon areas of uncertainty or ambiguity. Take for instance an attorney who is asked to express an opinion regarding the possibility of victory in a piece of civil litigation. In order to draw the conclusion, the attorney will have to know not only the current state of all applicable law relating to the (possibly numerous) legal issues in the matter. He will also be required to predict the resolution of disputed factual issues in the case. To further complicate the matter, one or more of the legal issues affecting the case may be subject to conflicting opinions from different courts, or there may be no clear authority. Given the "unknowns," the prudent client may, in response want a second opinion from another attorney for comfort.

It is not just in litigation matters where second legal opinions can be useful. Business and tax matters, real estate issues, domestic relations issues and practically the entire variety of legal matters in which humans involve themselves can benefit, in the proper circumstances, from second opinions.

The problem with second opinions are that they are time consuming and expensive. In order for the second attorney to express an opinion on a particular matter, knowing that the client may potentially rely on that opinion in deciding a course of action, he or she will have to know the facts and circumstances of the case in detail. Further, the second attorney has to conduct independent research regarding the legal issues. All that costs money and takes time.

An alternative frequently tried by clients is to solicit "cocktail party advice." By that I mean casual opinions from persons with varying degrees of legal training (or none at all) rendered in non-professional relationships which have the appearance of legal substance, but not the form. Prudent attorneys refuse to give cocktail party advice. If they do express an opinion, they will carefully explain that their opinion is valueless since they do not know the facts and circumstances of the case, or the applicable law. However, it is not unusual for a client to challenge a legal recommendation from his attorney based upon some contrary piece of advice given by his brother-in-law who just graduated from law school (or worse yet, is still attending law school), or from a paralegal.

To make matters worse, the client may have (intentionally or unintentionally) left out the difficult facts in the case in seeking the second opinion. This is frequently the case where difficult facts exist that the client does not want to deal with. This may be the very thing that drove the client to seek a second opinion in the first place.

Even if the client does make full disclosure of the facts, good and bad, the client cannot be expected to know the applicable law. Nor can the second attorney. After all, the second attorney will likely not have the necessary grasp of the legal issues at first blush, and probably will not go research them in any event.

Another irony of the cocktail party advice syndrome is that it can lead clients to place more reliance on a casual conversation than the client is placing on the informed opinion of his primary attorney, with whom he has established a professional relationship.

But just as it is dangerous for the client to solicit or receive cocktail party advice on a legal matter, it may also be dangerous for the second attorney. For example, the State Bar of California rules are quite strict with respect to when an attorney/client relationship is deemed to arise, and even the giving of casual advice may, in certain circumstances, give rise to professional duties on the part of the second attorney. That makes him liable for malpractice.

The State Bar rules impose significant requirements on successor counsel, including the obligation to advise the first attorney of his involvement at the earliest opportunity, unless compelling circumstances require otherwise. This would rarely be the case. Accordingly, the client should always inform the first attorney that he is seeking a second opinion and the name of the attorney involved.

Responsible first counsel will not only welcome the opportunity to confirm his opinions (or challenge them before it is too late) and will cooperate with second counsel. It is not only good for the client, it is professionally proper and a source of protection for the first attorney. However, if the opinion is useless cocktail party advice, it can create more problems than it solves and lead to an improper and dangerous reliance by the client.