Nature of the Rule
Section 24, Canon II of the Code of Professional Responsibility and Accountability requires a lawyer to avoid directly or indirectly encroaching upon or interfering in another lawyer's professional engagement. The rule treats a legal engagement as a protected professional relationship, not because a lawyer owns the client, but because orderly representation, client confidence, and professional fairness require respect for an existing counsel-client relationship.
The duty is part of propriety. It regulates the manner by which lawyers deal with clients, prospective clients, adverse parties, and fellow counsel. It prevents a lawyer from gaining employment by exploiting another lawyer's existing engagement, undermining confidence in counsel, or bypassing the counsel who is professionally responsible for the matter.
The rule does not freeze the client's freedom of choice. A client may change counsel, obtain a second opinion, complain against negligent counsel, or engage additional counsel. What the rule forbids is the lawyer's improper initiative or method: solicitation, intrusion, secret negotiation, disparagement, or circumvention of a lawyer who remains engaged in the same matter.
Protected Interests
The rule protects three related interests. First, it protects the client from pressure, confusion, and manipulation by lawyers seeking to displace existing counsel. Second, it protects the administration of justice because pending matters require a clear lawyer of record through whom notices, pleadings, negotiations, and procedural decisions pass. Third, it protects the legal profession by requiring lawyers to compete by competence and integrity, not by poaching clients or sabotaging colleagues.
The protection is ethical, not proprietary. The client is not a commodity and the lawyer has no vested right to continue as counsel against the client's will. The ethical wrong lies in the encroaching lawyer's conduct, especially when the conduct causes a client to abandon counsel through false promises, undue influence, misrepresentation, or disparagement.
Meaning of Encroachment
Encroachment is an improper intrusion into an existing professional engagement. It may occur when a lawyer, knowing that a person is already represented in a matter, offers to take over the case, gives advice designed to displace counsel, or communicates in a way that weakens the existing counsel-client relationship for the lawyer's own professional gain.
The act may be direct or indirect. A lawyer cannot do through a partner, associate, employee, agent, runner, intermediary, relative, public officer, or another client what the lawyer cannot ethically do personally. The prohibition reaches subtle methods because interference with another lawyer's engagement often occurs through influence rather than formal appearance.
Encroachment may appear in litigation, transactional practice, settlement discussions, administrative proceedings, corporate work, or private counseling. The form of the matter is immaterial; what matters is that another lawyer has an existing engagement on the same subject and the lawyer's conduct intrudes upon that engagement without proper basis.
Forms of Prohibited Interference
- Soliciting a represented client. A lawyer acts improperly by approaching a person already represented in a matter and offering to replace existing counsel, especially by promising a better result, a faster disposition, political access, special influence, or a lower fee.
- Disparaging existing counsel to obtain employment. A lawyer may not attack another lawyer's competence, loyalty, diligence, or honesty as a device to induce the client to transfer the matter, unless the statement is made in good faith as proper advice to a client who seeks relief against neglectful or unfaithful counsel.
- Using intermediaries to poach clients. The use of agents, fixers, employees, friends, or former clients to persuade represented parties to change counsel remains the lawyer's ethical act if done with the lawyer's authority, knowledge, or ratification.
- Secretly negotiating with a represented party. A lawyer should not communicate, compromise, or settle the subject of the representation directly with a person known to be represented by counsel, when the communication bypasses that counsel and concerns the represented matter.
- Undermining counsel of record in a pending case. A lawyer interferes when the lawyer takes procedural control, files papers, directs litigation strategy, or receives case communications while the existing counsel remains counsel of record, without proper substitution, collaboration, or authority.
- Inducing breach of a lawful fee arrangement. A lawyer may not lure a client by encouraging refusal to honor a lawful fee obligation to the previous counsel, although the client may question unconscionable fees or contest fees through proper remedies.
- Exploiting distress or urgency. A lawyer who takes advantage of a represented client's fear, detention, illness, financial pressure, family conflict, or confusion in order to seize the engagement violates the standard of propriety.
When Advice or Acceptance of Employment Is Proper
Section 24 must be read with the client's right to competent and loyal counsel. A lawyer may give proper advice and assistance to a person seeking relief against unfaithful, conflicted, negligent, abusive, or neglectful counsel. The profession does not require silence when a client reasonably asks for help because the existing lawyer has failed in duty.
Proper advice is limited by good faith. The lawyer may explain the client's rights, available remedies, possible substitution, fee issues, deadlines, and the need to protect the client's interests. The lawyer should not exaggerate defects, manufacture distrust, promise a result, or convert the consultation into improper solicitation.
A lawyer may accept an engagement from a client who voluntarily terminates prior counsel, whose prior counsel has withdrawn, whose matter has been abandoned, or who clearly asks the lawyer to enter as additional or replacement counsel. In those situations, the lawyer's obligation is to regularize the transition, respect lawful liens and fee rights, and avoid conduct that needlessly humiliates or obstructs the former counsel.
Client's Right to Change Counsel
The client's power to discharge counsel is an incident of the personal and fiduciary nature of legal representation. A client cannot be compelled to retain a lawyer in whom the client has lost confidence. This right exists even if the discharge may later generate a fee dispute, subject to the court's control in pending litigation and to the lawyer's lawful remedies for compensation.
Because the right belongs to the client, the ethical line depends heavily on who initiated the change and how it was carried out. If the client independently seeks new counsel, the new lawyer may respond professionally. If the lawyer or the lawyer's agents create the dissatisfaction by improper approaches, the lawyer crosses into encroachment.
In a pending case, substitution should be handled with notice to the former counsel and compliance with procedural requirements so that the court, adverse parties, and the client know who has authority to act. Until proper substitution, counsel of record remains the lawyer to whom court notices and case communications are normally directed.
Second Opinions and Consultations
A second opinion is not automatically interference. Clients may consult another lawyer to understand their rights, test legal strategy, evaluate a fee arrangement, or determine whether their counsel has been diligent. The consulted lawyer may answer questions honestly and may identify legal risks, missed remedies, conflicts of interest, or ethical concerns.
The consultation becomes improper when the lawyer turns it into an unsolicited campaign to take over the matter. The lawyer should keep the advice tied to the client's question, avoid unnecessary criticism of the existing lawyer, and make clear that any change of counsel must be the client's voluntary decision and should be done through proper channels.
Direct Dealings With Represented Persons
Interference commonly occurs when a lawyer deals directly with a represented person regarding the subject of representation. The represented person's counsel is the professional channel for legal communications on the matter. Bypassing counsel may expose the represented person to pressure, admissions, improvident waivers, or unfair settlements.
Direct communication is especially improper when the lawyer knows that the person is represented, the communication concerns the same dispute or transaction, and the purpose is negotiation, compromise, waiver, admission, or strategic advantage. Consent of the represented person's counsel, communication through counsel, or a legally authorized setting removes the impropriety.
The rule does not prevent ordinary communications unrelated to the represented matter. It also does not prevent parties themselves from speaking to each other, unless the lawyer uses a party as a conduit to accomplish what the lawyer is ethically barred from doing.
Additional and Collaborating Counsel
A client may engage additional counsel, collaborating counsel, or special counsel. Such engagement is proper when it is initiated or approved by the client and does not secretly displace existing counsel. Professional courtesy requires clarity on the scope of work, authority to appear, responsibility for filings, and communication with the original counsel.
If the engagement is collaborative, the lawyers should avoid conflicting instructions to the client and should coordinate on deadlines, pleadings, appearances, and settlement authority. If the new engagement is meant to replace existing counsel, the transition should be openly handled instead of allowing two lawyers to appear to control the same matter inconsistently.
Distinctions
| Situation | Ethical Character | Reason |
|---|---|---|
| Client independently asks for advice because counsel has neglected the case. | Generally proper. | The lawyer may give good-faith assistance to protect the client from neglect or disloyalty. |
| Lawyer approaches a represented party and offers to take over the case for a lower fee. | Improper. | The lawyer intrudes into an existing engagement and solicits professional employment. |
| Lawyer accepts employment after the client has discharged prior counsel. | Generally proper. | The client may choose counsel, subject to proper substitution, notice, and fee consequences. |
| Lawyer negotiates settlement directly with an adverse party known to be represented. | Improper unless counsel consents or law authorizes the contact. | The communication bypasses the counsel responsible for protecting the represented party. |
| Lawyer appears as collaborating counsel with the client's and existing counsel's knowledge. | Proper. | There is no secret displacement or circumvention of the existing professional engagement. |
Practical Consequences
A violation may result in administrative discipline because the misconduct reflects lack of propriety, fairness, and respect for the profession. The seriousness depends on the lawyer's intent, the method used, the vulnerability of the client, the prejudice caused, the effect on pending proceedings, and whether the conduct involved deceit, solicitation, harassment, or bad faith.
Improper encroachment may also affect related disputes. It may be considered in resolving fee controversies, motions involving representation, complaints for unethical solicitation, or questions concerning the validity of settlements obtained through pressure or circumvention. The ethical violation does not automatically decide every civil or procedural issue, but it is a significant circumstance whenever the lawyer's conduct tainted the representation.
The former counsel's remedy is not self-help. A lawyer who believes another lawyer has encroached upon an engagement should protect the client's interests, assert lawful fee or lien rights through proper procedure, and pursue disciplinary remedies when warranted. Retaliatory harassment, obstruction of the client's chosen counsel, or refusal to release necessary papers without lawful basis may itself become misconduct.
Operational Standard
The controlling standard is professional restraint. Before advising or accepting a matter known to be handled by another lawyer, a lawyer should determine whether the client sought the advice voluntarily, whether the prior engagement remains active, whether the communication concerns the same matter, and whether the proposed action will bypass, undermine, or displace existing counsel without proper authority.
The lawyer's safest ethical position is to respect the existing engagement while preserving the client's freedom. The lawyer may inform, advise, and protect a client who asks for help, but may not solicit, manipulate, secretly negotiate, or take advantage of another lawyer's ongoing professional relationship.