Ethics Opinion Articles - NC State Bar Journal

How the State Bar Rules on Questions of Legal Ethics

By Alice Neece Mine

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 series of 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 Mark W. Merritt from the 26th judicial district in Charlotte. In addition to the 22 members of the State Bar Council who serve on the committee, there are 11 advisory members appointed to the committee. The advisory members are lawyers from the general membership of the bar and include law professors from four of the law schools in North Carolina (chosen on a rotating basis). 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, Alice Neece Mine, is the legal counsel to the Ethics Committee and provides legal advice and administrative support to the committee. Assistant ethics counsel Suzanne S. Lever and Nichole 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. In so doing, the committee applies the provisions of 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 written 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of the State Bar Journal where they are identified as proposed opinions with respect to which comment is solicited; unpublished opinions, known as “ethics decisions,” which are privately transmitted to inquiring lawyers and concern matters that are not thought to be of interest or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 concern a lawyer’s own actual or contemplated conduct also may be obtained from the ethics lawyers of the State Bar.

How do I get an opinion on an ethics question?

You may call or write to the State Bar. You also may make an appointment to discuss your question in person with an appropriate member of the State Bar staff. Telephone calls and appointments may be made during the hours of nine a.m. to five p.m. Monday through Friday.

If you call the State Bar, you should tell the receptionist that you have an ethics question. Your call will be directed to the assistant executive director or one of the assistant ethics counsel. If they are not available, your call may be directed to the executive director. The telephone number of the Bar is listed at the end of this article along with the names of the ethics lawyers at the State Bar.

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, the assistant director will contact you and ask you to provide a copy to the affected lawyer. This is done to give the lawyer an opportunity to comment on the inquiry.

Are there any limitations on the inquiries addressed by the Bar?

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 that disclose a possible violation of the Rules of Professional Conduct may be referred to the grievance committee of the State Bar for investigation. If a verbal inquiry discloses a possible violation of the Rules, the caller may be encouraged to file a formal report with the State Bar. An inquiry regarding a conflict of interest, which 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.

If you telephone, email, or visit the State Bar, you may receive an oral or emailed response to an inquiry that involves your own actual or contemplated conduct. Your inquiry is confidential. If your inquiry involves the conduct of another lawyer, you will be asked to put your inquiry in a letter to the State Bar. As previously stated, a copy of the letter must be mailed to the lawyer whose conduct is in issue and who may be affected by the opinion rendered in response to the inquiry. These written inquiries are not confidential.

Verbal or email inquiries that involve novel questions that are not clearly answered by the Rules or by prior published ethics opinions will not be answered by the ethics lawyers. The inquiring lawyer will be asked to put the question in writing for submission to the Ethics Committee.

May I rely on the verbal advice I receive in response to a telephone ethics inquiry?

Yes. Informal oral ethics opinions (given by phone or in person) and emailed ethics opinions are intended to provide feedback and guidance to lawyers who are trying to deal with difficult ethical dilemmas. Although an opinion of a 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. If a grievance is subsequently filed against you, the fact that you sought and followed the advice of the staff of the State Bar will be the best evidence of your good faith effort to comply with the Rules.

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 staff of the Bar will provide an advance informal oral or email opinion on whether an advertisement complies with Rule 7.1 of the Rules of Professional Conduct. Rule 7.1 prohibits false and misleading communications about a lawyer’s services. 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 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 verbal or emailed, informal ethics opinions, an opinion of a 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 staff lawyer is evidence of a lawyer’s good faith and carries substantial weight with the Grievance Committee.

When is an ethics advisory issued?

In her capacity as legal counsel to the Ethics Committee, the assistant executive director initially reviews written inquiries sent to the State Bar. She determines whether the inquiry can be answered immediately with an ethics advisory or should be referred to the Ethics Committee for initial consideration.

If the written inquiry involves a routine matter, either 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 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 under the section captioned “Proposed Ethics Opinions” and on the State Bar’s website, www.ncbar.com. Regardless of the significance of the opinion, the committee generally respects a request from the inquirer that an 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 in 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 State Bar Journal and on the State Bar’s website (www.ncbar.com) with a notice that any interested person or group may submit a written comment or request to be heard concerning 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 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. (If a proposed opinion is revised, it will be noted in the caption of the opinion in the Journal.) On occasion, as a part of the reconsideration process, difficult or controversial proposed opinions are submitted 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 publication or transmission of the opinions in question. 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. Also, 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 group 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, 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 (www.ncbar.com) which is updated after every quarterly meeting. Also, the annual edition of the Lawyer’s Handbook, sent to all active members of the bar each spring, contains all formal ethics opinions through the date of publication.

 

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