(This article appeared in Journal 5,3, September 2000)
How the State Bar Rules on Questions of Legal Ethics
Any member of the North Carolina State Bar (the “Bar”) may request a ruling from the Bar on the actual or contemplated professional conduct of a member of the Bar. Unfortunately, the process used by the Bar to respond to ethics inquiries is unknown or unclear to many lawyers. The following questions and answers are designed to provide guidance to lawyers who are unfamiliar with or mystified by the procedure for ruling on questions of legal ethics.
What is the Ethics Committee of the State Bar?
The Ethics Committee is a standing committee of the Council of the State Bar. It meets on a quarterly basis in conjunction with the Council’s quarterly meetings. The meetings are open to the public. The current chairman of the committee is Darrin D. Jordan from the 19C judicial district (Rowan County) in Salisbury. In addition to the 18 members of the State Bar Council who serve on the committee, there are 15 advisory members appointed to the committee. The advisory members are lawyers from the general membership of the bar. All members of the committee are eligible to vote on any issue coming before the committee. The president of the State Bar annually appoints the members of the Ethics Committee to terms of one year.
The assistant executive director of the State Bar, Brian Oten, is legal counsel to the Ethics Committee and provides legal advice and administrative support to the committee. Assistant ethics counsel Suzanne S. Lever and Nichole P. McLaughlin also support the committee. Ms. Mine, Ms. Lever and Ms. McLaughlin are not voting members of the committee.
The primary purpose of the Ethics Committee is to /provide advice to the members of the State Bar relative to their own ethical dilemmas. To do so, the committee applies the North Carolina Rules of Professional Conduct (the “Rules”) to facts presented by inquiring lawyers.
What kinds of opinions does the Ethics Committee issue?
Three kinds of official opinions are issued by the Ethics Committee: published opinions, known as “Formal Ethics Opinions,” which appear in each issue of the State Bar Journal where they are identified as proposed opinions with respect to which comment is solicited; unpublished opinions, known as “ethics decisions,” which are privately transmitted to inquiring lawyers and concern matters that are not thought to be of interest or concern to the broader membership of the bar; and “ethics advisories,” which are opinions offered by designated staff counsel of the State Bar to inquiring lawyers who seek advice about their own contemplated conduct.
Informal oral or email opinions that address a lawyer’s own actual or contemplated conduct may also be obtained from the ethics lawyers at the State Bar.
How can I get an informal opinion on an ethical dilemma that I am facing?
If your inquiry relates to your own prospective conduct, you may telephone the State Bar and ask to speak to an ethics lawyer or you may send an email to ethicsadvice@ncbar.gov. You also may make an appointment to discuss your question in person with a staff ethics lawyer. Telephone calls and appointments may be made during the hours of nine a.m. to five p.m., Monday through Friday.
One of the three staff ethics lawyers will respond to your inquiry. The advice that you receive from an ethics lawyer is considered an informal, or unofficial, opinion of the State Bar because it is not reviewed or approved by the Ethics Committee. However, the communication between you and the ethics lawyer is confidential to the same extent as a communication between a lawyer and a client under Rule 1.6 of the Rules of Professional Conduct. Because the communication is confidential, you do not have to present the inquiry to the ethics lawyer in a hypothetical or to otherwise attempt to obscure client information: just present the facts in a manner that is clear, concise, and identifies your ethical dilemma.
There are some questions to which the staff lawyers may not respond. If the question relates to the conduct of another lawyer, you must write to the State Bar for a response from the Ethics Committee and send a copy of the letter to the lawyer whose conduct is at issue. This gives the other lawyer an opportunity to comment upon the inquiry. If an inquiry discloses a possible violation of the Rules, you may be encouraged to file a formal report with the State Bar. If the question relates to past conduct (your own or that of another lawyer), the staff lawyer will decline to answer because there is no guidance to be given as to future conduct. The staff lawyer will also decline to respond to an inquiry that involves a novel question that is not clearly answered by the Rules or by prior published ethics opinions. The inquiring lawyer will be asked to put the question in writing for submission to the Ethics Committee for its official consideration at its next quarterly meeting.
May I rely on the advice I receive in response to a telephone or emailed ethics inquiry?
Yes. Although an opinion of a staff ethics lawyer is not a formal ethics opinion, you may rely upon the advice that you receive. Informal ethics opinions are intended to provide guidance to a lawyer who is in the midst of an ethical dilemma. If a grievance is subsequently filed against you, the fact that you sought and followed the advice of a staff lawyer at the State Bar will be the best evidence of your good faith effort to comply with the Rules.
How do I get an official opinion on an ethics question?
You may write or email the Ethics Committee, its chair, or the ethics staff lawyers at the State Bar. Note that if you write to the State Bar, your inquiry may become part of the records of the Ethics Committee of the State Bar. The records of the Ethics Committee are public. Therefore, you may want to express your ethics question in a hypothetical format. Also, your letter should indicate that you have provided a copy to all persons who you believe will be substantially affected by the question advanced in the letter. It is particularly important that you provide a copy of your inquiry to any lawyer whose conduct may be at issue in your inquiry. If you have not done so, you will be asked to provide a copy to the affected lawyer. This is done to give the lawyer an opportunity to comment on the inquiry.
As when you present an informal inquiry to a staff lawyer, please make your written inquiry concise and clear, and be sure to set forth all of the ethical questions or concerns that you believe are raised by the situation. If you believe that the Rules of Professional Conduct should be applied or interpreted in a particular way, you are welcome to present your point of view to the committee.
Are there any limitations on the inquiries addressed by the Ethics Committee?
Yes. Opinions will not be provided if the material facts of the inquiry are in dispute or the inquiry requires an interpretation of law rather than legal ethics. Written inquiries to the Ethics Committee that disclose a possible violation of the Rules of Professional Conduct may be referred to the grievance committee of the State Bar for investigation. An inquiry regarding a conflict of interest that is the subject of a pending motion to disqualify counsel will not be answered unless the tribunal requests that the opinion of the State Bar be obtained. In these instances, the Ethics Committee defers to the concurrent jurisdiction of the court to rule on questions of professional conduct.
Will the Bar staff review a legal advertisement before it is published or broadcast?
Yes. Although prior review of an advertisement is not required by the Rules, the ethics lawyers will provide an informal opinion, in advance, on whether an advertisement will comply with the Rules of Professional Conduct. The advertisement may be submitted in the form of written copy, if it is a television advertisement, video, DVD, or a link to a website. Frequently, the staff will recommend changes to the advertisement to help the lawyer avoid statements that, although not clearly misleading, may have a tendency to mislead. Like other informal ethics opinions, an opinion of an ethics lawyer on a legal advertisement is not binding upon the Grievance Committee if a grievance is subsequently filed. Nevertheless, compliance with the advice of the staff lawyer is evidence of a lawyer’s good faith and carries substantial weight with the Grievance Committee.
When is an ethics advisory issued?
The assistant executive director, in her role as counsel to the Ethics Committee, initially reviews written inquiries sent to the State Bar. She determines whether the inquiry can be answered immediately with an informal opinion or an ethics advisory from a staff lawyer, or should be referred to the Ethics Committee for initial consideration.
If the written inquiry involves a routine matter, any of the ethics staff lawyers may issue an ethics advisory. An ethics advisory is a written ruling on a question of legal ethics which is transmitted in a letter format to the lawyer making the inquiry. Ethics advisories are designated by the letters “EA” and are consecutively numbered. A copy of each ethics advisory is kept on file at the Bar’s headquarters. Ethics advisories are sent by the staff without the prior review of the Ethics Committee. However, all ethics advisories sent during a quarter are included in the agenda for the quarterly meeting of the Ethics Committee and are reviewed and discussed by the committee at the quarterly meeting. A lawyer who receives an ethics advisory prior to its review by the Ethics Committee may rely upon the advice contained in the advisory unless and until he or she is notified that the advisory has been modified. If the committee determines that an ethics advisory should be modified, the committee may issue a revision of the ethics advisory and the inquiring lawyer is informed and asked to comply. The inquiring lawyer is held blameless for conduct undertaken in good faith reliance upon the ethics advisory prior to its modification. The committee may also determine that the inquiry raises a question of legal ethics that is important to the general membership of the bar and withdraw the advisory in order to publish a proposed formal ethics opinion.
When is an ethics decision or a formal ethics opinion issued?
If the assistant director determines that an ethics inquiry cannot be answered with an ethics advisory because the inquiry involves a matter of first impression, relates to the conduct of someone other than the inquiring lawyer, or involves an issue that may be of concern to the general membership of the bar, an ethics advisory will not be issued. Instead, the written inquiry will be presented to the Ethics Committee for consideration at its next quarterly meeting. The committee will discuss the inquiry and decide on the appropriate response. The committee will also decide whether the proposed opinion should be issued as an unpublished ethics decision that is privately transmitted to the inquiring lawyer or published as a proposed formal ethics opinion. A proposed opinion will generally be published if the committee believes that it will be of interest to the members of the bar at large. Proposed opinions are published in the Journal, the State Bar’s quarterly magazine, and on the State Bar’s website. Regardless of the significance of the proposed opinion, the committee generally respects a request from the inquirer that the proposed opinion not be published.
A copy of the proposed ethics decision or formal ethics opinion is provided to the inquiring lawyer as well as all other interested persons, including any other lawyer whose conduct may be at issue and anyone who submitted written comments or addressed the Ethics Committee about the proposed opinion.
When do proposed ethics decisions and formal ethics opinions become final ethics opinions of the State Bar?
Proposed formal ethics opinions are published in the Journal and on the State Bar’s website with a notice that any interested person or organization may submit a written comment or request to be heard on a proposed opinion. If written comments or requests to be heard are received about a proposed formal ethics opinion, it is reconsidered by the Ethics Committee at its next quarterly meeting after publication. Written comments or remarks are carefully considered and debated. As a result of this reconsideration process, the Ethics Committee may decide to amend the proposed opinion and republish it in the Journal and on the website for further comment. Alternatively, the committee may decide that the proposed opinion is the proper response to the inquiry and request that the Council approve the proposed opinion as published. A proposed formal ethics opinion may, on occasion, go through the reconsideration process several times. As a part of the reconsideration process, difficult or controversial proposed opinions may be sent to a subcommittee of the Ethics Committee for closer scrutiny. The subcommittee will meet between quarterly meetings to discuss the inquiry and will make a recommendation to the full committee at the next quarterly meeting.
Proposed formal ethics opinions and ethics decisions are not final until they are considered and approved by the Council of the State Bar, typically upon motion made by the Ethics Committee at the quarterly meeting immediately following the quarter during which the proposed opinions were published for comment or, in the case of ethics decisions, circulated to the members of the Council. Of course, if a proposed opinion is reconsidered and revised, it will be republished and will not be submitted to the Council for final approval until the Ethics Committee determines that no further revisions should be made to the opinion. At the meeting of the Council at which a proposed ethics decision or formal ethics opinion is scheduled for final approval, any interested person or organization may request to be heard before the Council’s vote on the proposed decision or opinion. The Council may, in its discretion, allow or deny such a request.
Where are adopted formal ethics opinions published?
Adopted formal ethics opinions are not republished in the Journal. Therefore, to learn the status of a published proposed opinion, it is important to read the introduction that precedes the “Proposed Opinions” section of the Journal. The introduction explains which opinions published in the last edition of the Journal were finally approved by the Council at its most recent meeting.
All formal ethics opinions are published on the State Bar’s website which is updated after every quarterly meeting. Also, the annual edition of the Lawyer’s Handbook contains all formal ethics opinions through the date of publication. The Handbook can be downloaded from the State Bar website.
What are “RPCs” and where do I find them?
In 1997, the North Carolina Supreme Court repealed the Rules of Professional Conduct originally adopted in 1985 and adopted the Revised Rules of Professional Conduct (now simply referred to as the Rules of Professional Conduct). When the 1985 Rules were in effect, the formal opinions issued by the Ethics Committee were designated “RPCs.” The acronym corresponded to the name of the Rules under which the opinions were then issued. Although the RPCs were adopted under the superseded (1985) Rules, they 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. The complete RPCs are published in the Handbook and on the website. Be sure to check the text of the Rules as well as the index to the Handbook to be sure that all subsequent history is considered.
The ethics opinions that were issued under the Code of Professional Responsibility, in effect from 1973 through 1985, are called “CPRs.” They are referenced infrequently in the RPCs and the formal ethics opinions. You may obtain a copy of a CPR by calling an ethics lawyer at the State Bar.
What can I do to facilitate the processing of my ethics inquiry?
Learn the procedures for ruling on questions of legal ethics. Remember that informal oral and emailed advice and written ethics advisories are provided only if the inquiry involves your own prospective conduct. If your inquiry involves the conduct of another lawyer, it must be in writing and your letter to the Bar should indicate that a copy was mailed to the lawyer whose conduct is in issue. Remember that no opinion will be given if the facts are in dispute, the inquiry involves an interpretation of the law, past conduct, or conduct that may be a violation of the Rules of Professional Conduct. In written and oral inquiries, state the facts clearly and succinctly. Do not send copies of pleadings, documents, and correspondence that must be waded through to determine the facts or the ethical dilemma. Clarify whether you are asking about your own conduct or the conduct of another lawyer. Be sure to ask a specific question and all pertinent collateral questions.
Please call or write as soon as it is clear that you have an ethics question. Some questions require research or consultation. Because the Ethics Committee meets only four times a year, questions that are referred to the committee may not receive a responsive opinion for several months. The sooner the matter is placed on the committee’s agenda, the earlier you can expect a response.
Who do I talk to at the State Bar about a question of legal ethics?
All of the lawyers on staff at the State Bar are experienced and knowledgeable about legal ethics. However, the assistant director and the two assistant ethics counsel are primarily responsible for responding to questions of legal ethics. Please contact them if you have an ethics problem.
What is the contact information for the State Bar?
Ethics Lawyers: Brian Oten, Suzanne S. Lever, Nichole P. McLaughlin
Telephone: 919/828-4620
Address: PO Box 25908, Raleigh, North Carolina 27611-5908
Email address: ethicsadvice@ncbar.gov
Web Address: www.ncbar.gov