TELEPHONE ETHICS ASSISTANCE
What it is, what it isn't, and other resources
By George Riemer
The OSB General Counsel's Office provides legal ethics assistance to bar members primarily by telephone, but also in writing. Although this service has been available to interested bar members for many years, this column is a reminder about what the service is, and is not, and about other available resources in this important area.
OSB members are free to call Sylvia Stevens, (503) 431-6359, or me, (503) 431-6405, with ethics questions. Board of Governors Policy 9.400(C) states, in part, that 'General counsel's office shall endeavor to assist bar members in analyzing the ethics of the inquirer's prospective conduct and may provide personal reactions to the questions presented.'
Bar member ethics calls are not confidential or privileged and no attorney-client relationship is established between callers and the general counsel's office. Callers should couch their questions in the hypothetical and should not disclose privileged information to general counsel's office. We try to assist callers by pointing out relevant legal ethics opinions, disciplinary decisions and other legal ethics resource material. We offer reactions concerning possible solutions to the questions asked. In the end, of course, callers must decide for themselves what action to take and are ultimately personally responsible for compliance with the bar's disciplinary rules. Cf. DR 1-102(C) ('A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.')
The recent case of In re Brandt and Griffin, 331 Or. 113, 10 P.3d 906 (2000) indicates that legal ethics advice from the general counsel's office does not estop the bar from charging violations with respect to conduct undertaken after obtaining that advice. The court also concluded that it did not need to decide what advice general counsel had given the lawyers before deciding for itself that they had violated a particular rule. Similarly, the supreme court indicated in In re Ainsworth, 289 Or. 479, 614 P.2d 1127 (1980) that legal ethics advice from the general counsel's office does not provide lawyers with a defense to disciplinary charges. Cf. In re McMenamin, 319 Or. 609, 879 P.2d 173 (1994), in which both the concurring and dissenting opinions took the accused's seeking bar legal ethics advice into consideration in their analyses regarding the lawyer's conduct.
Callers should also be aware that general counsel's office does not memorialize the substance of the telephone legal ethics assistance given although brief notes may be taken in certain cases. Callers who desire confirmation of the reaction given to them over the phone should send general counsel's office a confirming letter. If we have anything further to add we will respond in writing to complete the discussion. Note also that we rely on the caller's good faith in explaining all the relevant facts and circumstances. We do not independently investigate those facts. If we are not given complete and accurate information, our reactions will not be helpful.
In those situations where an immediate reaction is not required, or in the case of novel or particularly complex questions, bar members should consider submitting their legal ethics questions to the Oregon State Bar Legal Ethics Committee in writing. Board of Governors Policy 9.400(C) provides, in part, that 'A bar member may request that a question [first presented to general counsel for consideration] be submitted to the Legal Ethics Committee. Such requests, and inquiries submitted directly to the Committee, shall be assigned by the chair of the committee to one or more committee members for preparation of a response.'
If bar members are in need of legal ethics advice in a confidential setting they should consider retaining a lawyer in private practice who concentrates or specializes in legal ethics matters. A number of OSB members practice in this area and can be consulted in these circumstances. It should be remembered, however, that as with the legal ethics assistance provided by the general counsel's office, reliance on the advice of private counsel is not a defense to bar disciplinary charges either.
Past bar member surveys have rated the state bar's legal ethics assistance program quite highly in terms of value. We hope you continue to value this service even if does not afford you a defense to subsequent bar disciplinary charges. In the end, bar members are free to choose to call the general counsel's office for non-confidential legal ethics assistance or to retain a lawyer in private practice for legal ethics advice protected by the attorney-client privilege and DR 4-101.
I hope this brief column has helped clarify the nature of the legal ethics assistance offered by the OSB General Counsel's Office. If any bar member has any further questions concerning this service or the process used by the Legal Ethics Committee in responding to legal ethics opinion requests, please feel free to contact Sylvia Stevens at (503) 431-6405 or e-mail: firstname.lastname@example.org; or me at (503) 431-6405; e-mail: griemer@ osbar.org. +
George Riemer is general counsel of the Oregon State Bar.