Oregon State Bar Bulletin AUGUST/SEPTEMBER 2015
Ethics Advisory Opinions:
What Are They and How Do I Get One?
By Helen Hierschbiel
One of the most highly valued services the Oregon State Bar provides to its members is the ethics assistance offered by its general counsel’s office. We receive an average of 20-25 calls each day, most of which we answer the same day received. Some members refer to this service as the “Ethics Hot Line.” In addition, our office receives about a dozen emails each week from members with ethics questions. We strive to (and generally do) respond to these written requests for assistance within three business days. Providing ethics advisory opinions is a bar service that dates back decades and, based on the informal feedback we receive, is extremely popular.
Although many Oregon lawyers take advantage of this service, questions about how exactly it works remain. We hope to answer the most common questions here.
Are my communications with the bar confidential?
No. The bar does not provide legal advice; instead we explain how the rules have been interpreted and offer guidance about how to steer clear of misconduct. As a result, communications between the general counsel’s office and Oregon lawyers seeking ethics guidance are not subject to the attorney-client privilege. Moreover, the OSB is subject to the public records laws. Consequently, any records submitted to the bar or generated by the bar in the course of answering ethics questions may be subject to disclosure upon request. See OSB Bylaw 19.102.
By contrast, lawyers’ conversations with the Professional Liability Fund about their own possible malpractice are confidential.
Does the bar keep a record of our conversation?
Yes, although our notes of telephone calls are relatively sparse. Generally, we record the date, name of lawyer (if provided), basic facts, the rule or rules discussed and a brief summary of the guidance provided. Telephone records and written informal advisory opinions are kept for five years. See OSB Bylaw 19.103.
Do I have to give my name?
No. We do not require that lawyers provide us with their names when requesting an advisory opinion.
Am I allowed to share confidential information with the bar?
Generally, no. Oregon RPC 1.6(a) prohibits lawyers from disclosing information relating to the representation of a client. “Information relating to the representation of a client” is defined to include both attorney-client privileged communications and all other information a lawyer gains during the course of representing a client that the client has asked be kept secret, or that likely would be embarrassing or detrimental to the client if disclosed. RPC 1.0(f).
Oregon RPC 1.6(a) permits disclosure of confidential information when “impliedly authorized to carry out the representation.” ABA Formal Op No 98-411 (1998) interprets this rule “to allow disclosures of client information to lawyers outside the firm when the consulting lawyer reasonably believes the disclosure will further the representation by obtaining the consulted lawyer’s experience or expertise for the benefit of the consulting lawyer’s client.”
In addition, Oregon RPC 1.6(b)(3) provides an exception to the general rule, allowing lawyers to reveal information relating to the representation of a client to the extent the lawyer reasonably believes is necessary to secure legal advice about the lawyer’s compliance with the rules of professional conduct. Note, however, that this exception applies only when the lawyer is seeking legal advice; because the bar does not provide legal advice, and the communications between the bar and the lawyer are not privileged, this exception does not apply when a lawyer seeks ethics guidance from the bar.
In short, lawyers should definitely not disclose privileged communications when seeking an advisory opinion from the general counsel’s office, and they should carefully consider whether disclosure to the bar of any other information relating to the representation would be detrimental or embarrassing to the client.
How do I protect my client’s confidences and still get ethics guidance from the bar?
We recommend that lawyers pose their questions in the form of a hypothetical. For example, rather than referring to clients by name, refer to them as A, B or C. As noted in OSB Formal Ethics Op No 2011-184, however, “[f]raming a question as a hypothetical is not a perfect solution … Lawyers face a significant risk of violating Oregon RPC 1.6 when posing hypothetical questions if the facts provided permit persons outside the lawyer’s firm to determine the client’s identity. Where the facts are so unique or where other circumstances might reveal the identity of the consulting lawyer’s client even without the client being named, the lawyer must first obtain the client’s informed consent for the disclosures.”
If you have a question that relates to a matter that is particularly sensitive, you may want to consider speaking with a private lawyer, with whom you can have a privileged conversation. In addition, some conflict questions require significant factual detail in order to provide the most helpful guidance. Again, consulting with a private lawyer in these situations may be the best course in order to both obtain an opinion you can truly rely on and to protect your client’s confidentiality.
Do I have to make my request in writing?
No. Bar members can telephone the general counsel’s office for reactions to ethics questions, but those verbal reactions do not qualify as a basis for mitigation of disciplinary sanctions under RPC 8.6(b) unless they are confirmed in writing.
What if I think I have made an ethical blunder?
Call a private lawyer, not the bar. Bar advisory opinions are intended for the lawyer’s own prospective conduct, not as a means to resolve misconduct that has already occurred. If you disclose your own misconduct to the bar, we may feel compelled to open an investigation into the matter, particularly if we think it is serious misconduct.
Although we are aware of only one instance where the bar opened an investigation based on a lawyer disclosing misconduct in a detailed, written request for an advisory opinion, lawyers should be mindful when talking with general counsel’s office that lawyers at the bar have the same obligation to report professional misconduct that other Oregon lawyers do under Oregon RPC 8.3.
What reporting obligation?
Except in limited circumstances, a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects must report the matter to the OSB Client Assistance Office. See RPC 8.3. For more information about your duty to report misconduct, see “Other People’s Mistakes,” by Amber Hollister, OSB Bulletin (Oct. 2014); www.osbar.org/publications/bulletin/14oct/barcounsel.html.
Is my reliance on an advisory opinion a defense to a disciplinary charge?
No. Oregon RPC 8.6(b), however, does allow the disciplinary board and Oregon Supreme Court to consider a lawyer’s good-faith effort to comply with a written advisory opinion as a basis for mitigation of any sanction that may be imposed.
Is there a difference between a formal and an informal written advisory opinion?
Yes. An informal advisory opinion is issued by general counsel’s office. Formal advisory opinions are drafted by the OSB Legal Ethics Committee and adopted by the Board of Governors. Informal advisory opinions are typically issued within three business days. Formal advisory opinions can take a year or more to complete, as they are drafted by volunteer lawyers and the Legal Ethics Committee only meets six times a year. Consequently, formal ethics opinions are limited to topics that are likely to benefit a large number of lawyers. The formal opinion process is described in more detail in Section 19.3 of the OSB Bylaws, here: www.osbar.org/_docs/rulesregs/bylaws.pdf.
May I call to find out whether an opposing lawyer’s conduct violates the ethics rules?
Generally, no. Advisory opinions are provided only to lawyers seeking guidance about their own prospective conduct. See OSB Bylaw 19.102. On the other hand, we will assist lawyers with determining whether they have a duty under RPC 8.3 to report alleged misconduct by other lawyers.
How do I access this benefit?
You can call the main OSB main number, (503) 620-0222, and tell the receptionist that you are looking for ethics assistance, and the receptionist will connect you to an available lawyer. Alternatively, you can call the general counsel or deputy general counsel directly. Also, feel free to drop us a line, either by email or mail. More information about this service can be found on the legal ethics home page of the OSB website here: www.osbar.org/ethics.
ABOUT THE AUTHOR
Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or (800) 452-8260, ext. 413, or by email at email@example.com.
© 2015 Helen Hierschbiel