Yes, you can. There is nothing unethical in principle about providing a second opinion. Equally, you may decline to act, as solicitors are not subject to the ‘cab rank rule’ as barristers are.
The ‘no contact rule’ which forbids direct communication with the client of another solicitor does not apply in these circumstances (see Rule 33 Australian Solicitors Conduct Rules 2012 (Qld)).
There is no obligation to inform the other solicitor of the instructions, although there is a view that you should do so, as a matter of professional courtesy, unless the client instructs otherwise. You would need client consent to inform the other solicitor. If the client refuses consent, you may refuse to act on that basis.
The client should be told:
- at the outset of the conditions under which you are prepared to act;
- that instructing you to provide a second opinion may possibly provide ‘just cause’ entitling the other solicitor to terminate their retainer under Rule 13.1.3 of the Australian Solicitors Conduct Rules 2012 (Qld) 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;
- 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 and the effect of that.
You should:
- avoid undermining the client’s relationship with the current solicitor (subject to providing the client with full and frank advice as necessary - some 'diplomacy' may be required);
- not seek to entice the client to transfer their instructions to you. A client’s choice of solicitor is entirely a matter for them and the client should not be improperly influenced in this choice;
- ensure that you have sufficient information to provide proper advice, so that you are able to fulfil your duties to the client and avoid a negligence claim. Your advice may need to be appropriately qualified. There are obvious dangers in providing advice where you do not have access to the complete file of the current solicitors;
- note that if you decline to act, your discussions with this ‘potential client’ should be considered confidential.
Where a solicitor refers one of their clients to you for specialist advice, perhaps in relation to a particular aspect of a matter, or for a matter generally, then as a general principle, and as a matter of professional courtesy, you should not take advantage of the referral to enlarge the scope of your representation of the client, either to the matter generally or to other matters.