What should you do when you have a thorny legal ethics problem that comes up in the course of representing a client? The answer is not “Call Ghostbusters.” There are a variety of ways to get ethics advice, and some could be better than others in putting you in the best position in case someone should second-guess your conduct later.
We’ve discussed the case of the Illinois lawyer whose defense against disciplinary charges includes advice of counsel. The lawyer is contesting charges that he made misrepresentations to a court when he entered into a settlement agreement on behalf of his client without informing the court the client was already dead. In his answer to the disciplinary complaint, the lawyer said that he conferred with his law partners about whether the duty of confidentiality required him to keep mum about the client’s death and, presumably with their advice, concluded that it did.
That wouldn’t seem to be a very strong advice-of-counsel defense, at least in the absence of any evidence that the lawyer’s partners had some legal ethics experience or expertise.
Spectrum of legal ethics advice
The informal, internal “let me bounce this situation off you” advice the lawyer seems to have gotten is at one end of the spectrum when it comes to ethics advice. What are the other options?
- At the other end of the spectrum would be an advisory opinion from the most official ethics source available in your jurisdiction. In my home state of Ohio, for instance, the state supreme court’s Board of Professional Conduct issues such opinions (although the Board notes that its opinions are “non-binding”). If you inquire and receive an advisory opinion before acting, and if your conduct comports with the opinion, there would seem to be a near zero chance of running into disciplinary trouble. The downside is that the procedure is usually slow; it takes due deliberation, and the process might not be nimble enough to respond to your issue when you need it.
- In most jurisdictions, bar associations (and sometimes multiple local ones) also issue ethics opinions, ranging from formal advisory opinions to informal guidance. That process might possibly be quicker, but may still not be quick enough.
- Many state and local bar associations have ethics hot lines, where you can get guidance. If you are concerned enough about the issue to seek advice, you probably want definitive advice you can take to the bank. Staffers on a hot line might be reluctant to give you that.
- If you practice with a large firm, you probably have access to an in-house ethics guru. Most sizeable firms have an ethics committee, an Office of General Counsel, or a partner who serves as General Counsel to the firm. That’s an excellent place to turn to for advice. (We’ve written before about how attorney-client privilege rules seem to be evolving in the direction of recognizing privilege for such consultations.)
- Finally, if you don’t have firm resources of your own, a growing practice niche consists of legal ethics and professional responsibility. Practitioners in that area will have experience and knowledge of the ethics precepts and case authorities governing a host of problems that you might run into, from conflicts to confidentiality, marketing to law firm mergers.
As we pointed out in our previous discussion, the fact that a lawyer receives ethics advice before acting might not completely exonerate him or her from misconduct charges, but it could be a mitigating factor — one that might lighten the consequences of an ethical mis-step, such as reducing a possible suspension down to a reprimand.
But in order to effectively invoke advice of counsel, getting off-the-cuff advice is unlikely to be sufficient. In the context of a criminal case, for example, an advice-of-counsel defense generally requires a showing that before taking action the defendant sought the advice of a competent lawyer, in good faith, for the specific purpose of getting advice on the lawfulness of the possible future conduct, made a full and accurate report of all known material facts, and acted strictly in accordance with the advice. See, e.g., United States v. Cheek, 3 F.3d 1057, 1061 (7th Cir 1993). Whether the Illinois disciplinary board will apply that standard to the advice-of-counsel defense before it is an open question.