Proceed with Caution
An ABA opinion tells in-house ethics counsel how to play by the rules
Posted Feb 1, 2009 8:09 PM CST
By Eileen Libby
“Am I walking on ethically thin ice in the way I’m handling this case?” That’s a question just about every practicing lawyer has to ask on occasion. But whom do you ask?
For sole practitioners and lawyers in smaller firms, finding someone to consult on potential ethics problems can be difficult. Friends in the profession may not have enough knowledge of the nuances of ethics rules to be of help.
Many bar associations offer ethics hotlines—at the ABA, it’s ETHICSearch in the Center for Professional Responsibility—but, although useful, they don’t always provide the depth of advice you can get from a trusted colleague.
Growing numbers of larger law firms, however, are responding to the need for advice on professional conduct issues by appointing ethics counsel to advise firm lawyers on questions relating to specific cases and provide general guidance on a wide range of subjects, including privilege, fees, advertising and solicitation, communicating with represented parties, and dealing with the misconduct of other lawyers.
It’s challenging work. Sorting through the potential ethics traps in various types of cases can become very complex, and it often takes a diplomat’s touch to explain to colleagues that they may be violating professional conduct rules.
The ABA Standing Committee on Ethics and Professional Responsibility offers some guidance to in-house ethics counsel in Formal Ethics Opinion 08-453 (Oct. 17, 2008).
Who does the ethics counsel represent? Under Rule 1.13 of the ABA Model Rules of Professional Conduct, the primary “client” of an ethics counsel is the firm rather than the individual lawyer seeking consultation, except in certain special circumstances. In its opinion, the committee states that “it is wise” for the firm to make that clear to its lawyers. (The Model Rules are the basis for most state professional conduct codes that directly govern lawyers.)
May confidential information be disclosed? Under Model Rule 1.6, lawyers are authorized to disclose information about a client in the context of an in-house ethics consultation, the opinion states. The rule even permits disclosure of confidential client information to a lawyer who is not a partner or other employee of the firm—if the purpose is to obtain advice about the lawyer’s compliance with professional conduct rules.
WHEN TO BLOW THE WHISTLE
What if conflicts arise? Generally, “a lawyer’s effort to conform her conduct to applicable ethical standards is not an interest that will materially limit the lawyer’s ability to represent the client,” Opinion 08-453 states. But if the lawyer consults with in-house ethics counsel in order to protect the interests of the lawyer or the firm—inquiring, say, about her own misconduct—“it may be difficult or impossible for that lawyer (or anyone in the lawyer’s firm) to give the client sufficiently detached advice as the matter progresses.” In that case, withdrawal of the lawyer, and possibly the entire firm, may be necessary.
What are the ethics counsel’s duties to disclose misconduct? Because an ethics counsel primarily represents the law firm, Model Rule 1.13 allows her to take any steps reasonably necessary to protect the firm from substantial injury. But disclosure should occur only if the highest appropriate authority within the firm fails to address the misconduct. In that situation, the ethics counsel may disclose the misconduct to disciplinary authorities outside the firm, even if doing so compromises confidential information that pertains to the firm’s client.
Model Rule 8.3 is even more emphatic in requiring a lawyer to report a violation of ethics rules to the state disciplinary authority when the conduct is egregious and, as described in a comment to the rule, “of a type that a self-regulating profession must vigorously endeavor to prevent.”
But if reporting the misconduct would reveal information relating to the representation of a client protected by Rule 1.6, the client must consent to reporting the violation, according to the opinion.
Related ABA Journal coverage:
"Close Calls," April 2007
Eileen Libby is associate ethics counsel for the ABA Center for Professional Responsibility.