(This article appeared in Journal 18,2, June 2013)
Welcome again to the North Carolina State Bar! Hopefully you have read the first article in this series and have been anxiously awaiting the second installment.
Here it is!
But first, let’s recap:
The North Carolina State Bar (“Bar”) is the state agency responsible for regulating the practice of law in North Carolina. The Bar website, along with the North Carolina State Bar Journal, is a place to:
• Learn more about the regulation of the legal profession in North Carolina;
• Review proposed ethics opinions and proposed amendments to the rules and regulations of the Bar;
• Research the existing rules, regulations, and ethics opinions of the Bar; and
• Catch up on the latest news and information from the Bar.
Not sure where to find the information you need? Check out our Bar Staff Contacts page: ncbar.gov/contacts/c_staff.asp.
Now for the new stuff.
To get you started, I have compiled a Q&A of the questions most frequently asked by new lawyers seeking advice from the Bar.
FAQs Relating to Getting Ethics Advice
Q: How do I get a question of legal ethics answered?
Any member of the Bar may request a ruling from the Bar on his or her own contemplated professional conduct. You may call or email the Bar. If you call the Bar, you should tell the receptionist that you have an ethics question. Your call will be directed to one of the assistant ethics lawyers. To avoid “telephone tag,” you may want to email your inquiry to Suzanne Lever (slever@ncbar.gov) or Nichole McLaughlin (nmclaughlin@ ncbar.gov).
If you have a question relating to the conduct of another lawyer, you must write to the Bar for a response and send a copy of the letter 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 over the telephone. You will be asked to put the question in writing and mail it to the Ethics Committee for its consideration at its next quarterly meeting. The records of the Ethics Committee are public. Therefore, you may want to express your ethics question in a hypothetical format.
Q: Are there any limitations on the types of ethics inquiries that I may submit to the Bar?
Yes. An opinion 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. 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.
A written inquiry that discloses a possible violation of the Rules of Professional Conduct may be referred to the Grievance Committee of the Bar for investigation. If an oral inquiry discloses a possible violation of the Rules, the caller may be encouraged to report the matter to the Bar.
Q: If I seek ethics advice, either over the telephone or via email, is the information provided and the advice received confidential?
Yes. Information received by designated staff 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), and as necessary to respond to a false or misleading statement made about an informal ethics advisory. In addition, if a lawyer’s response to a grievance proceeding relies in whole or in part upon the receipt of an informal ethics advisory, confidential information may be disclosed to Bar counsel, the Grievance Committee, or another appropriate disciplinary authority.
Q: If I get an opinion over the phone from a State Bar ethics lawyer, may I rely upon the advice I receive? Is the opinion binding on the State Bar?
Informal oral ethics opinions (given by phone or email) are intended to provide feedback and guidance to lawyers who are trying to deal with difficult ethical dilemmas. Although an opinion of a State Bar ethics lawyer is not a formal ethics ruling because it cannot be reviewed and approved by the Ethics Committee, you may rely upon the advice that you receive. Like an emailed informal ethics opinion, 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 the evidence of your good faith effort to comply with the Rules.
FAQs Relating to Advertising
Q: Will a State Bar ethics lawyer review a legal advertisement before it is published or broadcast?
Yes. Although prior review of an advertisement is not required by the Rules, the State Bar ethics lawyers will provide an advance informal oral or email opinion on whether an advertisement complies with Rules 7.1 through 7.5 of the Rules of Professional Conduct. The advertisement may be submitted in the form of written copy, tape recording, or, if it is a television advertisement, video, DVD, or a link to a website. Frequently the State Bar ethics lawyer 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 verbal or emailed informal ethics opinions, an opinion of a State Bar 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 State Bar ethics lawyer is evidence of a lawyer’s good faith and carries substantial weight with the Grievance Committee.
Q: May a lawyer send a targeted direct mail solicitation to potential clients?
Rule 7.3(c) allows a lawyer to solicit professional employment from a potential client known to be in need of legal services by written, recorded, or electronic communication provided the statement, in capital letters, “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES” (the advertising notice) appears on a specified part of the communication. If the solicitation is by letter, Rule 7.3(c)(1) requires the advertising notice to “be printed at the beginning of the body of the letter in a font as large or larger than the lawyer's or law firm's name in the letterhead or masthead.” In addition, Rule 7.3(c)(1) requires direct mail letters to potential clients to be placed in an envelope. The advertising notice must be printed on the front of the envelope, in a font that is as large as any other printing on the envelope, and the front of the envelope “shall contain no printing other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice.”
Specific questions as to lawyer advertising should be directed to Nichole McLaughlin at nmclaughlin@ncbar.gov.
FAQs Relating to a Lawyer’s Relationship with Other Firm Employees
Q: What are an associate’s ethical duties when a partner orders the associate to do something the associate considers improper?
A subordinate lawyer is bound by the Rules of Professional Conduct even if the lawyer acts at the direction of another person. Rule 5.2(a). However, the subordinate lawyer does not violate the Rules if the subordinate lawyer acts in accordance with the supervising lawyer's “reasonable resolution” of an “arguable” question of professional duty. Rule 5.2(b). In other words, if it is clear at the time that the actions are undertaken that it is a violation of the Rules of Professional Conduct, a subordinate lawyer cannot blindly follow the directions of a supervising lawyer and claim a “Nuremberg defense,” i.e., “I was just following orders.”
For example, if a subordinate is told by a supervising lawyer to file a pleading that the subordinate lawyer knows is frivolous, the subordinate would be violating the Rules of Professional Conduct if he or she files the pleading. See Rule 5.2, cmt. [1].
However, the subordinate lawyer does not violate the Rules if there is an “arguable” or close question about whether the supervising lawyer's directions would result in a violation of the Rules. For example, if there is a serious question about whether the interests of current clients conflict under Rule 1.7, the subordinate lawyer can rely on the supervising lawyer's reasonable resolution of the question. See Rule 5.2, cmt. [2].
Determining whether a directed course of action is a “reasonable resolution” of an “arguable” question of professional duty can at times be difficult, particularly for a less experienced lawyer. As a starting point, the subordinate lawyer should discuss his or her concerns with the supervising lawyer. If the subordinate lawyer is still concerned that the supervising lawyer's resolution is not “reasonable,” the subordinate lawyer should talk to other partners in the firm, particularly if there is a partner designated as the “ethics counsel” or if there is an ethics committee created at the firm to resolve these questions. The subordinate lawyer may also call the State Bar ethics lawyers for guidance.
If the subordinate lawyer determines that the supervising lawyer is asking him to engage in a course of action that would clearly result in a violation of the Rules, then the subordinate lawyer must refuse to participate or assist in the matter even if refusal may result in the subordinate lawyer's dismissal from the firm.
Q: Am I responsible for the conduct of nonlawyers such as paralegals, legal assistants, and law clerks I supervise?
Nonlawyers such as student law clerks, legal assistants, and paralegals are not directly bound by the Rules of Professional Conduct. However, supervising lawyers must make reasonable efforts to ensure that the firm has effected precautionary measures and that the nonlawyer assistants’ conduct is compatible with the professional obligations of the lawyer. Supervising lawyers must give nonlawyers appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. The supervising lawyer can be held responsible for the ethics violations of the people he or she supervises.
Don’t turn that dial! There will be one more article addressing questions frequently asked by new lawyers seeking advice from the Bar. You won’t want to miss it!
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.
Portions of this article have been reprinted with the permission of Mary F. Andreoni and the ARDC (Attorney Registration & Disciplinary Commission, Illinois).