Oregon State Bar Bulletin ó JUNE 2003

Bar Counsel
NEW DR 1-105
Written advisory ethics opinions
By George A. Riemer

A new disciplinary rule regarding written advisory ethics opinions goes into effect on Tuesday, July 1, 2003. This article will explain the genesis of this new rule and how the written advisory ethics opinion process will work.

The Oregon State Bar has issued written advisory ethics opinions for decades. The most widely circulated of these are the formal opinions published in OSB Formal Ethics Opinions. Under Board of Governors Policy 9.400, the Legal Ethics Committee drafts responses to membersí inquiries and can propose the adoption of formal ethics opinions to the Board of Governors. If approved by the board, they are published in OSB Formal Ethics Opinions. The formal opinions are also available on the barís website here.

In addition, the barís general counselís office has for many years provided informal assistance to OSB members regarding ethics questions. Bar members may discuss prospective ethics issues with the general counsel and assistant general counsel, who endeavor to direct bar members to helpful information and may offer their reactions to ethics issues over the phone and by letter response.

Several forces recently came together to cause the bar to reevaluate its ethics opinion and assistance services. First, fewer formal ethics opinions are being requested, primarily due to the fact that inquirers have needed quicker responses than the opinion-drafting process has allowed. A developing ethics issue cannot wait several months to be addressed if the barís ethics assistance is to be of any immediate value to inquirers. Thus, most ethics questions are addressed by the general counselís office on a quick-reaction as opposed to a more scholarly written-opinion basis. Second, the Code of Judicial Conduct was amended a number of years ago to allow judges to obtain telephonic and written advisory opinions from the Judicial Conduct Committee of the Judicial Conference. Under JR 6-102, judges have been able to use such opinions to show their good faith efforts to comply with the Code of Judicial Conduct and to mitigate any potential sanction for violations of the judicial ethics rules. Various discussions over the course of time have lead to the question, why doesnít the bar have this type of rule for the benefit of the membership? Finally, the Oregon Supreme Courtís decision in In re Brandt and Griffin, 331 Or. 113, 10 P.3d 906 (2000), generated criticism that lawyers should be able to rely on ethics assistance provided by barís general counselís office as mitigation of, if not a defense to, disciplinary charges brought by the bar.

When the OSB House of Delegates approved the appointment of a study group to thoroughly review the OSB disciplinary process in 2001, one of the issues assigned to the task force was whether the bar should adopt a rule similar to JR 6 of the Code of Judicial Conduct (Advisory Opinions on Judicial Conduct; Consideration Given in Judicial Conduct Proceedings) for lawyers. Following discussion and debate in the task force, proposed DR 1-105 was drafted tracking the language of JR 6-102 in most respects. The Board of Governors and House of Delegates subsequently approved this proposed new disciplinary rule in 2002. The Oregon Supreme Court approved the new rule April 1, 2003, effective July 1, 2003. (See the full text of the rule set here.)

Starting July 1, 2003, bar members can submit written requests for advisory ethics opinions to the general counselís office, and the barís written response may be used in disciplinary proceedings in the manner set forth in new DR 1-105. Bar members should note the following in conjunction with this new process:

1. Opinion requests must be in writing. 'In writing' includes faxes and e-mails.

2. The question must relate to the requestorís own prospective conduct, not the conduct of someone else.

3. The information submitted must be adequate for the general counselís office to understand the situation and must be accurate.

4. The general counselís office may request additional information.

5. The general counselís office may decline to respond and instead refer a question to the Legal Ethics Committee for review.

6. Once the general counselís office has the information it believes it needs to answer the question, it has a minimum of three business days to respond.

7. BOG Policy 9.400(E) provides that 'Responses and opinions provided by General Counselís Office, the Legal Ethics Committee and the Board of Governors shall be limited to and deemed to address only the facts as submitted by the inquirer.'

8. Bar members can still telephone the general counselís office for reactions to ethics questions, but those reactions do not qualify for the consideration given written advisory opinions under DR 1-105 unless they are confirmed in writing as set forth in the rule.

9. Ethics questions and responses thereto are not confidential and communications with the barís general counselís office are not privileged. No attorney-client relationship is intended or created by such communications with the bar. Inquirers should be careful to use hypotheticals or otherwise ensure that the request does not disclose information protected by DR 4-101.

The enactment of DR 1-105 is not intended to diminish the responsibility bar members have for their own professional conduct, including the responsibility to make final decisions regarding their actions regardless of advice or assistance they may receive from the bar or anyone else. DR 1-103(C) continues to provide that 'A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.' As noted by the court in In re Brandt and Griffin, 331 Or. 113, 10 P.3d 906 (2000), 'Just as favorable advice by the barís general counsel does not provide a defense to disciplinary violations, In re Ainsworth, 289 Or. 479, 490, 614 P.2d 1127 (1980), such advice does not estop the bar from charging violations with respect to conduct undertaken after obtaining the advice of the barís general counsel.' 10 P.3d at 918-919.
Nevertheless, DR 1-105 will provide lawyers with evidence of their good faith efforts to conform their conduct to the disciplinary rules and should address concerns about what was asked and what advice was given. An opinion obtained under the rule may be used in any subsequent disciplinary proceeding that may arise as a result of the specific conduct addressed in the opinion. The Disciplinary Board and Oregon Supreme Court may consider the lawyerís good faith effort to comply with the written opinion as a showing of the lawyerís good faith effort to comply with the disciplinary rules and as a basis for mitigation of any sanction that may be imposed if the lawyer is found to be in violation of the rules.

Of the many thousands of ethics reactions and opinions the bar has provided to bar members over the course of time, few have ended up as disputes about what was asked and what was answered in subsequent disciplinary proceedings. New DR 1-105 puts the bar ethics opinion process on par with that available to Oregon judges and also addresses the issue of factual disputes about what was asked and answered when the barís assistance has been sought regarding ethics issues. The benefits of the new rule only apply to written advisory opinions issued by the bar.

George A. Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at (503) 620-0222, ext. 405, or toll-free in Oregon at (800) 452-8260, ext. 405, or by e-mail at griemer@osbar.org.

© 2003 George A. Riemer

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