Speaking of Ethics: Reintroducing the Legal Ethics Committeee
From Washington Lawyer, September 2000
By Susan D. Gilbert
For several years now, this column has been brought to you courtesy of the legal ethics counsel staff in Bar Report. Now, as Speaking of Ethics moves to its new home in the pages of The Washington Lawyer, it seems an appropriate time to remind Bar members of the various ways in which the Bar’s Legal Ethics Committee and the legal ethics counsel are available to assist lawyers in dealing with ethics issues, which occur with increasing regularity, and increasing demands on their time.
The Legal Ethics Committee was founded in 1974. Its mandate is to offer guidance to members of the Bar as well as the public on the interpretation and application of the D.C. Rules of Professional Conduct. Adopted in 1991, the rules replaced the Code of Professional Responsibility. Since their adoption, the committee has issued 91 opinions clarifying and interpreting various provisions of the rules. At its June 2000 meeting, the committee adopted its 300th opinion. Recent topics have included the duty of a lawyer to safeguard property to which third parties may have “just claims” (Opinion 293), the sale of a law practice by a retiring lawyer (Opinion 294), the confidentiality of information in a joint representation (Opinion 296), and receiving ownership interest in a corporate client in lieu of legal fees (Opinion 300).
The committee’s membership consists of 11 lawyers and four nonlawyer members, led by a chair and vice chair nominated by committee members and appointed by the Bar’s Board of Governors. Committee members serve on a voluntary basis for a maximum of two three-year terms.
At any given time at least several members of the committee are in the process of composing draft opinions, which are then vetted by the full committee at its monthly sessions. A simple majority vote of a committee quorum is required to adopt an opinion. Opinions are not binding upon Bar members, but they offer guidance in situations where a section of a rule or a comment to a rule is less than clear. Upon adoption opinions are posted on the Bar’s Web site (www.dcbar.org) and printed in the Daily Washington Law Reporter. Additionally, opinions are sent three times a year to all Bar members who subscribe to the rules supplement service. Opinions numbered 1 through 209, issued under the old code between 1975 and 1991, are also for purchase through the Bar’s Communications Office or by contacting the legal ethics counsel.
Formal committee opinions account for only a fraction of the guidance given Bar members each year by the committee and the legal ethics counsel, who staff the Ethics Help Line at Bar headquarters. Every year committee staff respond to thousands of inquiries from members of the public as well as Bar members. Inquiries that are amenable to response by reference to published opinions or straightforward construction of the rules are handled by phone. (More complicated matters and inquiries about situations of first impression receive a written response.) Although information is not protected by the attorney–client privilege, all calls are treated with the utmost confidentiality.
Legal ethics counsel respond to a wide range of issues, including conflicts of interest and prohibited contact with represented parties, as well as business-related issues, such as letterhead and business card inquiries. Recently, there have been numerous inquiries about multidisciplinary practice, which are referred to the Bar’s Multidisciplinary Practice Committee. Members of the public who call or write about fee disputes are encouraged to contact the Attorney/Client Arbitration Board, whereas practitioners with questions about office management and other practical matters are referred to the Bar’s Lawyer Practice Assistance Program.
Once a written inquiry is received, it is first reviewed by the chair and legal ethics counsel to determine whether it is answerable by reference to the rules, previous committee opinions, or a reasonable interpretation of the same material. If the inquiry is answerable by such reference, the inquirer will receive a letter from the chair or ethics counsel. If the committee chair determines that a specific inquiry has not been addressed by the rules and is of sufficient importance to the Bar, it is assigned to a member of the committee who drafts an opinion for later consideration by the full committee. It usually takes at least six months for the committee to issue a formal opinion, although some opinions have been issued in as little as three months. Requests for expedited guidance are handled accordingly. Inquirers should indicate when they are operating under any type of deadline.
There are limits to the type of matters to which the committee or ethics counsel may respond. According to the committee’s bylaws, inquiries that relate to past conduct of a specific lawyer as well as those that involve pending litigation (including disciplinary proceedings) are off limits. Nor will the committee or ethics counsel respond to questions of law or matters that relate to unauthorized practice of law issues subject to D.C. Court of Appeals Rule 49. Complaints of alleged misconduct are referred to the Office of Bar Counsel, which has sole jurisdiction to investigate such conduct. Unauthorized practice matters are referred to the executive secretary of the court’s Unauthorized Practice of Law Committee for disposition.
The members of the Legal Ethics Committee for the 2000–01 term are Irvin B. Nathan, chair; Kathryn M. Fenton, vice chair; Stephen L. Braga; Joseph Brent; Susan Carle; Steven Ebbin; John R. Fisher; Nathalie F. P. Gilfoyle; John R. Gregrich; Eric Hirschhorn; Daniel Joseph; J. William Koegel Jr.; Lisa G. Lerman; Maurice Ross; and Hallem H. Williams. Susan D. Gilbert serves as ethics counsel to the committee, and Michael T. Osborne is the ethics law clerk.
Ethics Counsel Susan D. Gilbert is available for telephone inquiries at 202-737-4700, ext. 232.