Advice of Independent Counsel

Paragraph (a)(2) of Rule 1.8 is the rule’s second numbered condition: “the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction.”¹ It follows the fair terms and written disclosure of paragraph (a)(1) and precedes the signed consent of paragraph (a)(3).²

The condition fills a gap that paragraph (a)(1) leaves open. The lawyer who proposes the deal also writes the disclosure, so the client learns about the transaction only from the party who stands to gain from it. Paragraph (a)(2) opens a second channel: the lawyer must say in writing that independent advice is desirable and must leave time to get it. Both duties fall on the lawyer. A client who reads the advice and declines to hire anyone has breached nothing, and the lawyer who gave the advice and the time has complied. The error to avoid is asking whether the client actually obtained counsel. The question is whether the lawyer advised the client in writing and allowed a reasonable opportunity to act.³

Written Advice and Opportunity

When the client has no lawyer on the deal, paragraph (a)(2) imposes two duties: advise the client in writing that independent legal advice on the transaction is desirable, and give the client a reasonable opportunity to obtain it.⁴ The comment restates both duties and adds that, when necessary, the lawyer should discuss the material risks of the transaction, including any risk presented by the lawyer’s own involvement, along with reasonably available alternatives, and should explain why independent advice is desirable.⁵

Silence is the plain way to fail, and Committee on Professional Ethics v. Mershon shows what follows. A lawyer there took a twenty percent stock interest in a corporation as the price of future legal services in a venture involving his client, Miller, and acknowledged that he never suggested that Miller obtain independent advice.⁶ The court started from the fiduciary relationship, which puts the burden on the lawyer to show that the transaction was fairly and equitably conducted, that he made sure the client was fully informed of its nature and effect, and that the client “either has independent advice in the matter or else receives from the attorney such advice as the latter would have been expected to give had the transaction been one between his client and a stranger.”⁷ The second alternative asks a great deal, because a lawyer on the other side of the table would have to advise against his own gain as a stranger’s lawyer would. Recommending that the client consult someone else is the dependable way to meet the formula.

Having chosen to proceed without recommending independent advice, the lawyer was obliged to make full disclosure, and the record did not show that he made it before Miller consented. The court found a violation of DR 5-104(A) and reprimanded him, even though he had not acted dishonestly or made a profit.⁸ Because Mershon applied the Code, its lesson is the principle and not the text. Under the current rule, a recommendation and a written disclosure are not alternatives. The lawyer owes both, and the recommendation must be in writing and paired with time to act.⁹

Another court applying the Code placed the choice with the client: once the lawyer has disclosed the facts and the conflict of interest, “it is then for the client to decide whether additional counsel should be retained.”¹⁰ The same passage warns that a lawyer’s personal interests should not deter him from suggesting additional counsel. That second point matters because the lawyer is the one person in the deal with a reason to leave the advice unsaid.

Compliance does not depend on the client’s choice, but it does depend on what the writing says. The letter must recommend. One that calls independent counsel unnecessary, or mentions it once in boilerplate, does not advise the client of its desirability. The writing also does practical work. A phone remark leaves two competing memories, while a letter fixes the words, gives the client something to show a second lawyer, and lets a later reviewer see what the lawyer actually said.

The opportunity half asks whether the client could realistically act on the advice. The rule sets no number of days. The question is how much time this client needs to find a lawyer, deliver the documents, and wait for a review, and a more complex deal calls for more.

The lawyer wrote the note and still failed, because advice the client has no time to follow is advice in form only. The opportunity requirement exists because a lawyer who controls the pace of the deal could otherwise satisfy the writing requirement and still keep the client from using it. A compliant letter and a reasonable interval cure only this paragraph. Unfair terms or an inadequate disclosure remain separate defects under paragraph (a)(1).¹¹

When the Client Has Counsel

One situation excuses the lawyer from paragraph (a)(2). When the client is independently represented in the transaction, the comment says, (a)(2) is inapplicable.¹⁴ The exception follows the paragraph’s purpose. Written advice tries to put a disinterested adviser within the client’s reach, and a client who already has separate counsel on the deal has one. A letter recommending a lawyer the client has already retained, and a waiting period to find one, would add nothing.

Independent representation also changes who may supply the disclosure that paragraph (a)(1) demands. The comment provides that the full-disclosure requirement is satisfied either by a written disclosure from the lawyer involved in the transaction or by the client’s independent counsel.¹⁵

What changes in that scene is which paragraph does the work. The other conditions stay in force. The comment says the client’s independent representation is relevant in determining whether the agreement was fair and reasonable, as paragraph (a)(1) further requires.¹⁶ The word relevant is chosen with care. Review by the client’s own lawyer is evidence that the terms held up under scrutiny, yet fairness remains a separate condition the lawyer must meet.¹⁷ The carve-out also leaves paragraph (a)(3) untouched. The client must still give informed consent, in a writing the client signs, to the essential terms and to the lawyer’s role.¹⁸ As the Eighth Circuit has put it, a party may waive the right to counsel unhindered by a conflict of interest, provided the waiver is knowing and intelligent.¹⁹ Students most often err by reading the comment as lifting the whole rule once a second lawyer appears. It lifts only (a)(2) and lets the client’s counsel supply the written disclosure.

The exception depends on the counsel being independent, and the lawyer who is a party to the deal cannot fill that role. The comment itself separates the lawyer involved in the transaction from the client’s independent counsel.²⁰ Independence means freedom from a stake in the outcome, and the lawyer across the table holds exactly the stake that created the need for outside advice. The phrase is also independently represented in the transaction, so a lawyer who has never been asked to look at this deal does not meet it. The comment treats the risk as greatest when the client expects the lawyer to represent the client in the transaction itself, and it then requires the lawyer to satisfy Rule 1.7 as well as paragraph (a).²¹ The discussion of the lawyer’s dual role develops that point later in this chapter.

Mira’s promise to protect both sides restates the conflict and does not cure it. A lawyer acquiring the client’s property has a financial interest in the price, and no one can advocate for both sides of a deal in which the interests pull apart. Only counsel with nothing to gain from the terms triggers the carve-out. Without such counsel, the written advice and the opportunity to act on it remain conditions of the deal.