(This article appeared in Journal 20,2, June 2015)
The Ethics Committee recently received an inquiry from a lawyer referencing a CPR from 1981. The lawyer’s inquiry led to a general discussion at the quarterly meeting of the different titles found on our ethics opinions and a suggestion that I write an article explaining the mystery behind the ethics opinions’ nomenclature. Easier said than done.
Let’s start with the basics. Chronologically, there have been three designations for the ethics opinions formally adopted by the State Bar Council: CPR, RPC, and FEO. With the exception of “FEO,” the acronyms correspond to the code of conduct that the opinions interpret.
CPRs
CPR stands for Code of Professional Responsibility. CPR opinions are ethics opinions that were issued under the Code of Professional Responsibility which was in effect from April 30, 1973, until January 1, 1986. Each CPR bears the identifying number assigned to it at the time of its initial publication in the State Bar’s quarterly publication at that time. CPR 1 is dated January 18, 1974.
CPRs are not included in the Lawyer’s Handbook, and only a select few are included on the State Bar’s website. Why? Take a look at the following CPR opinions (printed in their entirety):
CPR 33
(January 17, 1975)
Inquiry: Is it ethical for a lawyer to have his name printed on personal checks (as distinguished from his law office checks) followed by the words “Attorney” or “Attorney at Law”?
Opinion: Yes.
CPR 37
(January 17, 1975)
Inquiry: May a lawyer ethically charge interest on delinquent bills?
Opinion: Yes.
CPR 110
(April 15, 1977)
Inquiry: The question is whether or not a member of the Bar may ethically advise his client to seek a Dominican divorce knowing that the client will return immediately and continue his North Carolina residence.
Opinion: No.
The CPR opinions tend to be short and not particularly informative. More importantly, many provisions in the superseded Code and most of the interpretations of the Code found in the CPRs are simply no longer consistent with the current Rules of Professional Conduct. In the extreme, Code provisions violate constitutional law (think advertising). However, if you believe that a particular CPR opinion may be helpful to you, you may request a copy from the ethics department at the State Bar. The ethics department will tell you whether to consider the CPR to be consistent with the current Rules and still good guidance for lawyers.
RPCs
RPC stands for Rules of Professional Conduct. RPC opinions are ethics opinions promulgated under the Rules of Professional Conduct that were in effect from January 1, 1986, until July 23, 1997. Each RPC bears the identifying number assigned to it at the time of its initial publication in the State Bar’s quarterly publication at the time. RPC 1 is dated January 17, 1986.
RPCs are included on the State Bar website and in the annual Lawyer’s Handbook. That is because many of the provisions of the superceded 1985 Rules remain consistent with the current Rules and, with some exceptions, the RPCs continue to provide excellent guidance to lawyers.
FEOs
The most recent ethics opinions are titled “FEO” opinions. FEO stands for Formal Ethics Opinion. Formal Ethics Opinions are the ethics opinions adopted under our current Rules of Professional Conduct which were effective July 24, 1997, and were comprehensively revised in 2003 (effective February 27, 2003). To distinguish the 1985 Rules from the Rules adopted in 1997, this code is sometimes referred to as the “Revised Rules of Professional Conduct.” Formal Ethics Opinions are identified by the last two digits of the year of initial publication in the State Bar Journal and are numbered serially. The first Formal Ethics Opinion is 97 FEO 1 and is dated October 24, 1997.
Now that we have deciphered the acronyms of the three designations for ethics opinions, let’s look at the paramount distinction between them. Each of the three categories of ethics opinions rely on a different set of ethics rules for their authority: either the superseded Code of Professional Responsibility, the superseded North Carolina Rules of Professional Conduct (1985), or the Revised Rules of Profession Conduct (1997/2003).
To illustrate this distinction, consider these ethics opinions dealing with the exceptions to a lawyer’s duty not to disclose confidential client information.
The CPR opinions cite Ethical Considerations and Disciplinary Rules from the superseded 1973 Code of Professional Responsibility. For example, when discussing the duty of confidentiality owed to a former client, CPR 300 (1981) states: “DR 4-101(b)(1) forbids a lawyer to knowingly reveal a confidence or secret of his client except [when permitted under DR 4-101 (C)].”
The RPC opinions contain citations to the superseded 1985 Rules of Professional Conduct. RPC 206 (1995), addressing the duty of confidentiality owed to a deceased client, provides: “A lawyer may only reveal confidential information of a deceased client if disclosure is permitted by the exceptions to the duty of confidentiality set forth in Rule 4(c).”
The FEO opinions cite to the Revised Rules of Professional Conduct (1997/2003). For example, 98 FEO 18, which relies on the 1997 Rules when discussing the duty of confidentiality owed to a minor client, provides: “[A] lawyer owes the duty of confidentiality to a minor client and may not disclose confidential information to minor’s parents unless there is an applicable exception in Rule 1.6(d) permitting disclosure.” This demonstrates one of the important distinctions between the 1985 Rules and the 1997/2003 Revised Rules: the 1997/2003 Rules track the numbering of the rules in the ABA Model Rules of Professional Conduct. This change was made to facilitate research and to help lawyers moving between jurisdictions to identify and understand their professional responsibilities in each jurisdiction.
2009 FEO 1 relies on the Rules as amended in 2003 when discussing a lawyer’s duty to use reasonable care to prevent the disclosure of confidential client information hidden in metadata. The opinion states: “Rule 1.6(a) of the Rules of Professional Conduct prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or disclosure is permitted by one of the exceptions to the duty of confidentiality set forth in [Rule 1.6(b)].”
Each of the four opinions cites a different rule (or rule paragraph) when referencing the exceptions to a lawyer’s general duty of confidentiality.
While citations in the ethics opinions to the Ethical Considerations and Disciplinary Rules from the superseded 1973 Code of Professional Responsibility are easy to distinguish, the citations to the various versions of the Rules of Professional Conduct can cause confusion. Here’s an example:
RPC 39 (1988) deals with communication with an adverse party’s insurer. The opinion provides that “Rule 7.4(a) prohibits a lawyer from communicating regarding the subject of representation with a party the lawyer knows to be represented by another lawyer in the matter.” If you go to Rule 7.4(a) of current Rules of Professional Conduct (1997/2003), you will see that it deals with communication of fields of practice and specialization. Because the numbers for the 1985 Rules may be different from comparable rules in the 1997/2003 Revised Rules, correlation tables1 are included in the Lawyer’s Handbook and online. These tables cross-reference the 2003 and 1997 versions of the Revised Rules with the comparable provisions of the superseded 1985 Rules of Professional Conduct and 1973 Code of Professional Conduct. In the current example, if you consult the appropriate correlation table, you will see that Rule 7.4 (1985) is now Rule 4.2 (2003),Communication with Person Represented by Counsel.
The CPRs, RPCs, and FEOs still provide guidance on issues of professional conduct except to the extent that a particular opinion is overruled by a subsequent opinion or by a provision of the current Rules of Professional Conduct. Lawyers should check the text of the current rules as well as the ethics opinion index in the Handbook and online to be sure that all subsequent history is considered.
Navigating the various opinions, rules, and correlation tables can be tricky. If you are unsure whether an ethics opinion or ethics rule is still good authority, you may contact the ethics department at the State Bar for assistance (ethicsadvice@ncbar.gov).
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.