Parting Thoughts

Advice, Not a Guarantee

By Mark Johnson

Two letters in the February/March Bulletin (from Jim McCandlish and Roger A. Lennenberg) suggest in different ways that the bar's various methods of dispensing ethics advice are not useful because they do not create a defense to prosecution. That suggestion may wrongly discourage members from taking advantage of the bar's ethics advice services, and it does a disservice to the bar members and staff who fund, operate and advise those programs.

The bar provides a veritable smorgasbord of ethics advice services. Members having an immediate need for a sympathetic ear and some 'seat-of-the-pants' advice may call the general counsel's office and speak to a knowledgeable attorney, without charge, on practically a moment's notice. The conversation may be confirmed by the member in writing, and general counsel's office will respond and will attempt to correct any remaining misunderstandings. Members needing more detailed advice can request an opinion from the Legal Ethics Committee. The LEC, composed of lawyer volunteers and staffed by the general counsel's office, will respond to the member in writing. In appropriate circumstances, the LEC will submit its opinion to the Board of Governors for publication to all members and the public as a legal ethics opinion of the bar.

All of these mechanisms share a fault common to most legal advice, namely that it is advice, not a guarantee. It is too far a stretch for me to draw from that fault the idea that the advice is worthless. When confronted with a difficult ethical issue, I find it invaluable to discuss the situation with a lawyer who knows more about the ethics rules than I do. I could, of course, hire a lawyer to do that for me, but, as the client, the ultimate choice of how to proceed would be mine and mine alone.

The true difference, of course, between a lawyer's paid services and the bar's free services is that no lawyer-client relationship is formed in the latter. The bar's general counsel is not in a position to make the kind of searching and careful inquiry into the facts of a particular situation that a paid lawyer would perform. The advice a caller receives from the general counsel is no more reliable than the facts the caller relates. Much more reliable advice is available from the Legal Ethics Committee, again at no charge to the user beyond the payment of membership fees.

While the Legal Ethics Committee's advice also raises no bar to prosecution, presumably it would be an extremely unusual situation in which the bar would prosecute a lawyer for conduct undertaken in reliance on an opinion of the LEC. Ultimately, though, we all have to realize that the Oregon Supreme Court, and not the bar, 'owns' the disciplinary rules. It is the court's decision - and not the bar's - whether the rules have been violated, and if so, what the sanction will be. The rules could be amended to create a defense based on reliance on legal advice, but the court would have the final say on any amendment to the rules.

Ethics advice is a valuable membership service. Telephone advice from general counsel's office, in particular, does carry with it a certain degree of risk to the caller. That risk can be minimized by giving general counsel complete information, confirming the conversation in writing, and following the advice carefully. It should not be surprising to anyone who has ever represented a client to learn that callers have been known to shade the facts and not to follow the advice. No doubt, mistakes have also been made on the bar's end of the arrangement. The system should not be maligned or abandoned, however, because it isn't perfect or because it doesn't control the opinion of the court. +


Mark Johnson, an attorney with Bennett, Hartman, Morris & Kaplan in Portland, is a past president of the Oregon State Bar.

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