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Q: attorneys and second opinions; protocol ( Answered 5 out of 5 stars,   3 Comments )
Subject: attorneys and second opinions; protocol
Category: Relationships and Society > Law
Asked by: timespacette-ga
List Price: $5.00
Posted: 20 Jul 2006 18:45 PDT
Expires: 19 Aug 2006 18:45 PDT
Question ID: 748168
When you've hired an attorney and he gives his opinion about
something, what is the proper procedure to get a second opinion?  It
seems to me that attorneys, like doctors, shouldn't mind that their
clients seek other views . . . what is the general feeling about this
in the legal profession?

Specifically I have sited a state law (in Washington) that he says may
not hold up in court because it needs to have a precedent in the local
(county) courts.  Seems like state law is state law; somehow this
didn't sound right to me.  I don't want to go into specifics in this
question; I mostly want to know the etiquette involved in seeking
another professional opinion without complicating the professional
relationship with the first lawyer.

Subject: Re: attorneys and second opinions; protocol
Answered By: weisstho-ga on 22 Jul 2006 23:30 PDT
Rated:5 out of 5 stars
Dear TimeSpacette,

As a practicing attorney in another state, I can tell you that I don't
know of an instance where a client seeking another opinion was ever
disparaged or even questioned by the first attorney. Don't worry about
it in the least. Indeed, the Washington Rules of Professional Conduct,
specifically Rule 1.2, states that "a lawyer shall abide by a client's
decisions concerning the objectives of representation . . . and shall
consult with the client as to the means by which they are to be
pursued." Although the Rules don't directly state anything about
second opinions, the tenor of the Rules is that the client's wishes
must be respected, so long as those wishes are not themselves in
violation of the Rules.

As a general matter of law - I agree with you. A prior holding of a
superior court is generally binding upon lower courts. That concept is
referred to as "Stare Decisis" (Star-ay De-sise-is) and is a latin
term defined as: "to stand by that which is decided." The principal
that the precedent decisions are to be followed by the courts. To
abide or adhere to decided cases. It is a general maxim that when a
point has been settled by decision, it forms a precedent which is not
afterwards to be departed from. The doctrine of stare decisis is not
always to be relied upon, for the courts find it necessary to overrule
cases which have been hastily decided, or contrary to principle. Many
hundreds of such overruled cases may be found in the American and
English books of reports.

But what I love about the law: for every rule there are 15 exceptions.
Prior holdings of a state's supreme court are almost always good - but
how narrow was that court's holding?  Does it stand on "all four legs"
with the facts and law of your case (are the cases "factually

Rulings by the state's courts of appeal may only be precedential on a
much more limited ground - indeed, in some states, one regional court
of appeal may disagree with another court of appeal.

BUT, even if the ruling of the earlier court is not precedential under
stare decisis, it should certainly be "persuasive authority" - indeed,
law from other states can be "persuasive authority" if the Washington
supreme court has not decided a particular area of law.

I wouldn't hide the fact that you are seeking a second opinion from
your counsel - we can always "respectfully disagree."

This issue is generally pretty basic though; not the sort of thing
that any member of the bar is going to get wrong. You may want to have
your attorney give you a memo arguing why the earlier court's opinion
is not binding upon the court hearing your case. What is the
applicable law?  How was that law developed?  Is it statutory or
developed by court opinion? Was it a Washington opinion or the opinion
of another state court that was adopted by Washington?

But don't worry about the etiquette - you will be fine. You need to be
satisfied as to how the system works, what the relevant law is, and
how it is going to be applied to the unique facts of your case, be it
civil or criminal. Anything less than that and our system of justice
has short-changed you.

Ask away. 

Any follow-up or questions?  Hit the CLARIFICATION key!

Good luck,



Search Strategy:
washington courts
stare decisis
washington rules of professional conduct

Request for Answer Clarification by timespacette-ga on 23 Jul 2006 10:26 PDT
hello weisstho-ga,

thanks for addressing this question for me.

in the next to the last paragraph of your answer you asked "Is it statutory or
developed by court opinion?"

I don't think I understand what 'statutory' means; would you explain
this statement, specifically relating to being an alternative to
'court opinion'.  ?

(perhaps I will post a separate question for you and go more into the
details of this specific issue)



Clarification of Answer by weisstho-ga on 24 Jul 2006 11:17 PDT
Thanks for the follow-up; I want to make sure that you get what you need!

"Statutory" merely means of a statute - of a law. The "Washington
Revised Code" is your organic law - the constitution and the laws
passed by the legislature and signed by your governor. In addition, as
it pertains to the practice of the courts in Washington, you have the
Rules of Court which specify, in fine detail, what the exact
procedures that must be followed in any of the courts, all through the
Washington Supreme Court. This site allows you to search those

Statutes trump court opinions so long as the statute itself is
constitutional. Court opinions interpret statutes and constitutional
provisions. If the legislature doesn't like a court opinion, they can
nullify it by passing a new statute or amending an old one.

Court rules are just that - rules of the court (think of Robert's
Rules of Order.)

Let me give you an example:  You have probably heard of "squatters'
rights" where someone moves onto the land of another, lives there for
so many years, and then the ownership transfers to the squatter and
out of the hands of the true owner by operation of law. This is also
referred to as "adverse possession of real property."

The Washington Code no doubt provides that this doctrine can be
applied in Washington, and will state a "statute of limitation" - i.e.
how many years does someone have to live on the land of another before
he or she can claim it. But the statute probably doesn't give much
detail beyond that.

Court cases, however, do provide that detail of exactly what someone
has to do to claim the land of another. For example, the occupancy on
the land would have to be hostile, exclusive, open and notorious,
actual, and continuous.  Further, the court case will explain what
each of those terms mean, and how the principle is applied to the
facts of a case.

The Court Rules will specify which courts have jurisdiction to hear
such cases, where it must be heard (venue), and what procedures will
be followed in the case, how the lawsuit must be filed, etc.

The constitution, statutes, and court rules will specify appeal rights
in such a case.

It's a bit of a cobweb, isn't it?   

Don't hesitate to ask for clarification again. 

timespacette-ga rated this answer:5 out of 5 stars
sorry, my computer was out of commission for a period of time

thank you 

the process we're in has been postponed for a while; perhaps I'll get
back with more questions in a few months

thanks again,

* * *

Subject: Re: attorneys and second opinions; protocol
From: nelson-ga on 20 Jul 2006 20:47 PDT
You as a client have a right to terminate your relationship with the
attorney at any time you desire.  You can also seek additional counsel
should you wish.  You need not tell your current attorney.
Subject: Re: attorneys and second opinions; protocol
From: frde-ga on 24 Jul 2006 05:05 PDT
One lawyer who I like and trust told me 'go for it' when I was
thinking of sueing a large company.

Another said 'and if you do not think justice is bought, then you are
in for a big surprize'

He also said 'they cannot afford to lose the case'.

Get a second opinion, and if you are not sure, get a third opinion.

Always negotiate an hourly fee before talking to them (I used to ring
mine up, ask what his current rate was, time the call and at the end
demand a tax invoice, they are so used to being used for free and
'loading' paying clients that a straightforward transaction is
refreshing to them).
Subject: Re: attorneys and second opinions; protocol
From: weisstho-ga on 24 Jul 2006 11:18 PDT
Good advice.

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