Representing Lawyers and Other Clients in Inquiries before the Ethics Committee
We often receive requests to submit ethics inquiries to the State Bar from attorneys, law firms and other clients working with lawyers. The State Bar attorneys will ordinarily answer routine ethics questions over the telephone or by email. However, novel ethics questions are referred to the Ethics Committee for determination.
As the proceedings of the Ethics Committee are public, there are instances in which an inquiring attorney would rather not be identified. In those circumstances, we prepare and submit a written inquiry to the ethics staff, which includes written argument for the attorney’s position. If the attorney does not want to be identified, we simply state that we are inquiring on behalf of a client.
Based upon this written inquiry, the State Bar ethics staff then prepares a proposed opinion for submission to the Ethics Committee. The Ethics Committee will discuss the proposed opinion at its next quarterly meeting. At that time, our firm will be given an opportunity to present oral argument at the Ethics Committee meeting. The Ethics Committee can then vote to adopt the staff proposed opinion as written, it can refer the matter to subcommittee for further study, or it can modify the proposed opinion during the current Committee session. We typically also attend subcommittee meetings for clients to obtain information and provide input into the subcommittee’s recommendations.
If the Ethics Committee votes to both approve and publish the proposed opinion, it will be published in the next State Bar Journal as a proposed formal opinion. If no comment is received from attorneys in the intervening quarter following publication, then the opinion typically becomes a Formal Ethics Opinion, which will ultimately be published in the State Bar Lawyer’s Handbook. If the State Bar receives even one comment on the opinion, it is placed back on the Ethics Committee agenda for the following quarter for further discussion and this process can repeat itself until the Committee votes to recommend adoption of the opinion by the State Bar Council. The process for the State Bar to issue a formal ethics opinion typically takes from six months to occasionally several years before the Bar adopts a final opinion.
There are also instances where the inquiring attorney would prefer that the final adopted opinion not be published. We can formulate the request that the opinion not be published and request instead that the opinion be adopted as an Ethics Decision. There are several factors the State Bar uses in determining whether or not the opinion is published, such as interest to other members of the bar. Ethics Decisions are kept on record at the State Bar but are not published in the State Bar Journal or on its website and are not included in the State Bar Lawyer’s Handbook.
We also work with numerous clients to provide ethics advice and coordinate with law firm clients to obtain informal ethics opinions from the State Bar. For example, our firm regularly pre-screens proposed advertising and marketing materials, provides advice on compliance, and works with our clients and State Bar ethics staff to ensure full compliance with the Bar’s very detailed sometimes extremely technical ethics rules, opinions and interpretations in this area. This informal State Bar process is significantly shorter than obtaining a formal ethics opinion or an ethics decision, typically ranging from a few days to weeks or sometimes longer before an opinion is issued. Our firm strives to provide our response and advice within 24 hours.