As practice of law becomes more and more complex, the need to ensure that solo practitioners, law firms, corporate legal departments and governmental lawyers proactively comply with their ethical obligations has given rise to the importance of turning to ethics counsel for advice. Lawyers seeking such preventive advice do not violate the duty of confidentiality by consulting with outside ethics counsel about their client’s matter. Rule 1.6(b)(4) was added to the Model Rules and adopted in Ohio to accommodate the need for a prudent lawyer to affirmatively seek ethical guidance.1
The Comment to Rule 1.6 makes it clear that a lawyer’s duty of confidentiality does not prohibit a lawyer from obtaining confidential legal advice about the lawyer’s professional responsibility to comply with ethical rules.2 Typically, disclosing client confidences to secure such advice will be impliedly authorized for the lawyer to carry out the representation.3 Even when the disclosure is not impliedly authorized, sub-part (b)(4) allows disclosure of information relating to client representation because of the importance of a lawyer’s compliance with the Ohio Rules of Professional Conduct.
Occasionally, past misconduct by the consulting lawyer may be revealed during a preventive consultation. Because ethic's counsel's knowledge is privileged, he or she is not required to disclose past misconduct of a consulting lawyer to disciplinary authorities. In the case of clear misconduct relating to a consulting lawyer’s honesty, trustworthiness, or fitness, a consulting lawyer may be required to "self-report" misconduct that has already occurred.4