|Oregon State Bar Bulletin JUNE 2010|
Ethics Advice Made Easy
By Sylvia Stevens
One of the principal responsibilities of the OSB general counsel’s office is the provision of ethics assistance to members. By far most of our assistance is provided over the telephone or by e-mail. While we don’t have precise records, a fair estimate is that the general counsel and the deputy general counsel respond to an average of 80-90 telephone calls and 10-12 e-mail inquiries each week.1
Originally, ethics guidance was limited to written formal opinions drafted by the Legal Ethics Committee and issued by the Board of Governors. (The LEC occasionally issued unpublished informal opinions on issues deemed relevant to only a small segment of the bar.) The process was thoughtful and deliberative but of limited practical value to a lawyer who was facing an immediate question about the propriety of his or her conduct. Less formal written advice was available from the bar’s general counsel as far back as the 1970s, but it was typically limited to pointing the inquirer to available authorities. The process could take several days because both the question and the response were in writing. Since the early 1990s, in response to members’ desire for more timely assistance, the general counsel’s office has increasingly offered informal guidance by telephone and, most recently, by e-mail. Over the years, the number of requests for formal opinions has slowed to a trickle, while the demand for quick informal advice has steadily increased.
We cannot and do not tell lawyers how to proceed in a particular situation, and reliance on our advice is not a defense to a charge of misconduct. RPC 5.2(a) states clearly that a lawyer is bound by the Rules of Professional Conduct “notwithstanding that the lawyer acted at the direction of another person.” Moreover, “[j]ust as favorable advice by the bar’s general counsel does not provide a defense to disciplinary violations, (citation omitted) such advice does not estop the bar from charging violations with respect to conduct undertaken after obtaining the advice of the bar’s general counsel.” In re Brandt/Griffin, 331 Or 113 (2000).
At the same time, reliance on a written opinion, whether a formal opinion issued by the Board of Governors, or an informal opinion of the general counsel or deputy general counsel, can be a factor when a lawyer is subsequently accused of misconduct. Oregon RPC 8.6 provides that the disciplinary board or the state supreme court may consider a lawyer’s good faith effort to comply with a written opinion in assessing the lawyer’s good faith effort to comply with the rules of professional conduct; it may also be a basis for mitigating any sanction imposed if the lawyer is found to have violated a rule.
Our goal in providing ethics guidance is to help callers understand whether their situation implicates one or more RPCs, identify applicable authorities and then guide the lawyer through the analysis of whether the proposed conduct is compliant with the rules. We try to provide a quick, practical reaction to the issue presented. A request for a written response will be answered generally within three business days. We try to return telephone calls the same day or within 24 hours.
And we don’t just “make this stuff up,” as one wag suggested. Our responses are based on a variety of familiar sources including the Oregon RPCs, decisions of the disciplinary board and Oregon Supreme Court, OSB Formal Ethics Opinions, ABA Formal Opinions and the ABA Model Rule and Comment. Our guidance is also often informed by our experience with how the bar has dealt with complaints arising out of similar situations. The general counsel’s office lawyers meet regularly with the client assistance office and disciplinary counsel’s staff to make sure our interpretations of the rules are consistent.
We do not give advice about substantive law or procedure, but we recognize that context is often crucial to identifying, analyzing and resolving questions under the RPCs. We draw on our own practice experience and that of other attorney staff. Between the general counsel’s office, the CAO and the disciplinary counsel’s office, the bar has 13 lawyers with a broad range of private and government practice experience. We also learn a lot from the lawyers we talk to. Many calls we get don’t implicate the RPCs; when appropriate, we will refer a caller to other sources including the PLF, the courts or the bar’s Lawyer-to-Lawyer program.
Our ethics advice is intended to help lawyers conform their own prospective conduct to the obligations of the RPCs, and we generally do not comment on the propriety of what we know is past conduct of the caller or another lawyer. We occasionally have inquiries from lawyers on both sides of a pending matter who want our office to resolve a disputed issue. Typically, one lawyer accuses the other of acting contrary to a rule, so the other lawyer calls to confirm the propriety of his or her conduct. Then the first lawyer calls to verify (or challenge) the advice we have given the other lawyer. Fortunately, those are infrequent situations. Callers who want to know whether another lawyer has acted improperly generally understand when we say that we can’t assess the conduct without giving the other lawyer a chance to explain. Even when a lawyer inquires whether he or she has a duty to report another lawyer’s misconduct, we couch our comments about the other lawyer’s conduct in terms of “if the facts you assert are true, then….”
The provision of ethics assistance by the general counsel’s office is governed by OSB Bylaw 19.102, which provides, in part, that “ethics questions and responses are not confidential and communications with general counsel’s office are not privileged. No attorney-client relationship is intended or created by such communications with the bar.” At the same time, RPC 1.6(b)(3) permits a lawyer to disclose information otherwise protected under the rule “to secure legal advice about the lawyer’s compliance with these rules.” That language was taken from ABA Model Rule 1.6, Comment , which makes it clear that a lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s professional conduct under the rules. Because there is no confidential relationship between an inquiring lawyer and the OSB, we encourage callers to present their questions hypothetically or without using names of clients where revealing their identity would violate the lawyer’s duty under RPC 1.6. We also take anonymous calls, although reaching us without leaving a message is often difficult.
Based on informal feedback, we think we are doing a good job in this area, even with the limitations mentioned herein. We would like to know more, however, and invite you to participate in a brief online survey. Please go to https://www.surveymonkey.com/s/NFNQXQ3. Survey results will be reported in a subsequent column.
1. Lawyers in the client assistance office and disciplinary counsel’s office also respond to calls on occasion, either because the caller specifically sought out their advice or as back-up to general counsel’s office.
ABOUT THE AUTHOR
Sylvia Stevens is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222 or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at firstname.lastname@example.org.
© 2010 Sylvia Stevens