It has come to my attention that some North Carolina lawyers are unaware of (or apprehensive about) the North Carolina State Bar’s “ethics hotline.” This is entirely unacceptable.
There are three lawyers on the staff who answer ethics questions: Nichole McLaughlin, Suzanne Lever, and Brian Oten. (I only list Brian’s name last because, in addition to serving as ethics counsel, he also serves as director of legal specialization and director of paralegal certification—he gets busy).
Any member of the Bar can seek informal ethics advice on his or her own contemplated professional conduct from State Bar ethics counsel. Lawyers may email inquiries to email@example.com or call the Bar and tell the receptionist that they have an ethics question. It’s as easy as that.
Almost every jurisdiction has a service that provides informal ethics advisories to inquiring lawyers. Interestingly, some of these Bar programs are staffed entirely, or in part, by lawyers who also work on discipline cases. That is not the case in North Carolina. Our program for providing informal ethics advisories to lawyers is a designated lawyers’ assistance program staffed only by lawyers who work in the ethics department. Information received by ethics counsel from a lawyer seeking an informal ethics advisory is confidential information pursuant to Rule 1.6(c) of the Rules of Professional Conduct. Such information may only be disclosed as allowed by Rule 1.6(b), or if a lawyer’s response to a grievance proceeding relies upon the receipt of an informal ethics advisory. See 27 N.C.A.C. 1D, .0103(b). Because the communication is confidential, lawyers 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 the ethical dilemma.
Informal ethics opinions are intended to provide feedback and guidance to lawyers who are trying to deal with difficult ethical dilemmas in their own practices. The advice is considered an informal, or unofficial, opinion of the State Bar because it is not reviewed or approved by the Ethics Committee. An opinion of a State Bar ethics lawyer is not binding upon the Grievance Committee if a grievance is subsequently filed. Nevertheless, if a grievance is subsequently filed against you, the fact that you sought and followed the advice of a State Bar ethics lawyer will be evidence of your good faith effort to comply with the Rules.
Don’t be Shy
Last year ethics counsel responded to over 4,000 ethics inquiries. In some years we answered more than 5,000. We answer questions pertaining to every Rule of Professional Conduct. However, some topics get more attention than others. Here are the top ten topics (in descending order) from last year: Conflicts (by a wide margin), Advertising, Trust Accounting, Confidentiality, Unauthorized Practice of Law, Fees, Withdrawal, Firm Dissolution, Client Files, and Communication with Represented Person. Honorable mentions go to Candor to the Tribunal, Duty to Report Misconduct, and Client with Diminished Capacity. We answer these calls in the order in which they are received, and some seasons are busier than others. Still, whether by email or return phone call, we will get back to you as quickly as possible.
Don’t be Intimidated
There are no stupid questions. There are some days when I just wish someone would ask me if they can have sex with a current client. (Spoiler alert: the answer is “no.”) Honestly, if the question pertains to the Rules of Professional Conduct, ask away.
Keep in mind, however, that there are questions to which ethics counsel cannot provide informal ethics advice. If the inquiry relates to the conduct of another lawyer, the inquiring lawyer must write to the State Bar for a response and send a copy of the communication to the lawyer whose conduct is at issue. This will give the other lawyer an opportunity to comment upon the inquiry.
Also, inquiries that involve novel or controversial questions of legal ethics will not be answered with informal ethics advice. The lawyer will be asked to put the question in writing and submit it to the Ethics Committee for its consideration at its next quarterly meeting. Unlike information received by ethics counsel from a lawyer seeking informal ethics advice, the records of the Ethics Committee are public. Therefore, the inquiring lawyer may need to express the ethics question in a hypothetical format.
In addition, there are questions to which ethics counsel cannot provide informal or formal ethics advice. Ethics advice will not be provided if the inquiry requires an interpretation of law rather than legal ethics (attorney-client privilege, statutory interpretation, rules of procedure). An opinion will not be provided if the material facts of the inquiry are in dispute. Also, inquiries relative to a conflict of interest that is the subject of a motion to disqualify pending before a tribunal will not be answered unless the tribunal requests the opinion of the Bar.
If you are unsure whether your question is one that ethics counsel can answer, ask it anyway.
Do Educate your Employees
Every summer I receive inquires from legal interns on behalf of their employer. I think this is a great way for new lawyers to become comfortable with the Bar’s ethics hotline. I encourage every firm to give their legal interns and new associates at least one project that requires them to contact theethics hotline. The issue can be something simple. You might already know the answer. It doesn’t matter. Hopefully, a lawyer that has already gone through the process of contacting the ethics hotline will not hesitate to reach out to ethics counsel when a real ethics issue arises. (But please don’t have your interns ask the sex with a client question because that is just wrong.)
Do Write This Down
Contact information for the State Bar ethics staff:
Nichole McLaughlin firstname.lastname@example.org
Suzanne Lever email@example.com
Brian Oten firstname.lastname@example.org
Designated ethics email address email@example.com