2021 in Review: The Year in Ethics Opinions

Last updated on February 20th, 2022 at 02:42 pm

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By Ellen Brotman

I often tell my attorney-clients to think of the Rules of Professional Conduct as the Emily Post guide to etiquette for attorneys. The rules provide the dos and don’ts for your conduct in relation to your clients, your adversaries, the courts, nonrepresented parties, your subordinates, your supervisors, your partners and the public. Each rule is followed by interpretive comments to assist in your ability to understand and abide by them. The rules are great in telling you what you must do (answer client’s calls!) and what you mustn’t do (steal!). However, between those absolutes there is a wide range of uncertainty that requires me to tell my clients: I’ll need to think about that one!

Each state’s bar association tries to fill this “certainty gap” with informal and formal ethics opinions. In Pennsylvania, opinions are provided by the Pennsylvania Bar Association committee on legal ethics and professional responsibility and the Philadelphia Bar Association professional guidance committee. Informal ethics opinions are one of the most valuable and overlooked benefits of bar membership—well worth the price of admission. Members can submit “ethics inquiries” for advice on a specific problem and the committee will issue an informal opinion on the presented facts. Also, and this is invaluable, both the Pennsylvania and Philadelphia Bar Associations provide ethics hotlines, staffed by a professional responsibility attorney to answer more urgent questions. PBI also publishes a helpful hornbook on the rules: “Pennsylvania Ethics Handbook,” https://www.pbi.org/ProductCatalog/Product.aspx?ID=2688.

Formal ethics opinions are published by bar associations for various reasons. These opinions address a current and widespread legal issue that is creating ethical questions, such as the recent spate of opinions on attorneys working remotely from jurisdictions where they are not licensed. Opinions can also proactively forecast a trend on the horizon and analyze that trend in the context of the current state of the ethics rules. The American Bar Association issues several opinions a year, through its Center for Professional Responsibility. These formal opinions are  influential in the practical and academic discussions and applications of the rules, just as the Pennsylvania and Philadelphia Association’s opinions are influential here. I have cited these opinions in response to disciplinary complaints many times, demonstrating that my client’s conduct does not violate ethical norms or the minimum standards set by the rules.

To end your year on an ethical note, here is a summary of the ethics opinions you may have missed from the ABA and the PBA:

  • ABA Formal Ethics Opinion 495: Remote Work: This is an opinion from last year, but it is worth discussing. This opinion started a tsunami of ethics opinions across the country and injected some desperately needed sense into RPC 5.5, Unauthorized Practice of Law. The takeaway is this: if you are (for example) a Pennsylvania lawyer, sitting in your (for example) New Jersey shore home, practicing as authorized by your Pennsylvania license, and you are not in ANY way holding yourself out to be a New Jersey lawyer, you are fine in both Pennsylvania and New Jersey. While this seems logical, it is a departure from the location-based analysis of the prohibition against “establishing” a “systematic and continuous presence in the jurisdiction for the practice of law” by unadmitted lawyers. Pennsylvania and Philadelphia were among the first jurisdictions to adopt this analysis in Joint Opinion, Pennsylvania and Philadelphia Joint Formal Ethics Opinion 2021-100.
  • ABA Formal Ethics Opinion 496: Responding to Online Criticism: this is another response to a fact that the drafters of the Rules did not contemplate—digital is forever. The overarching concern here is Rule 1.6, confidentiality of client information. Confidentiality is far broader than attorney-client privilege; everything you know about your client that you learned through the representation is confidential, including facts that are publicly known. This opinion recommends not responding to the review as it may only exacerbate the matter. The opinion also recommends that the lawyer may request that the website or search engine host remove the information or post an invitation to contact the lawyer privately to resolve the matter. The lawyer could also say that “professional considerations preclude a response.”
  • ABA Formal Ethics Opinion 497: Conflicts Involving Materially Adverse Interests: Rules 1.9(a) and 1.18(c) address conflicts involving representing a current client with interests that are “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter. This opinion tries to bring some clarity to the phrase “materially adverse.” Some materially adverse situations are obvious, such as, negotiating or litigating against a former or prospective client on a related matter, or cross-examining a former or prospective client when client confidences are implicated in the cross-examination. The opinion states that, where a former client is not a party to a current matter, a positional conflict arises, “adverseness” must be weighed for materiality. Advocating for a change in the law that is disfavored by the former client alone does not constitute material adverseness.
  • ABA Formal Ethics Opinion 498: Virtual Practice: This opinion provides guidance for what is now basically all of us who practice a “technologically enabled law practice beyond the traditional brick-and-mortar law firm.” When practicing virtually, lawyers must consider how their ethical duties regarding competence, diligence, and communication are affected by the use of technology, especially in the area of preventing inadvertent or unauthorized disclosures of information and ensuring that reasonable precautions to protect confidences are taken by each individual lawyer and all the support staff. While this Opinion is helpful and timely, I strongly recommend the Pennsylvania Bar Opinion on this topic, which is a bit more comprehensive—and came first! See Pennsylvania Bar Association Commrnt on Legal Ethics and Professional Responsibility, Formal Op. 2020-300 (2020).
  • ABA Formal Ethics Opinion 499: Passive Investment in Alternative Business Structures: As the opinion explains: “ABA Model Rule of Professional Conduct 5.4 features a number of prohibitions designed to preserve the professional independence of lawyers. In general, the rule prohibits a lawyer or law firm from sharing legal fees with a nonlawyer, forming a partnership with a nonlawyer (if any of the activities of the partnership consist of the practice of law), and practicing in a business structure in which a nonlawyer owns any interest in the business or serves as a corporate director or officer.” This opinion addresses the question of whether a lawyer may passively invest in a law firm that includes nonlawyer owners and concludes that under certain circumstances, the lawyer can, if RPC 1.6 and 1.7 are not violated.
  • ABA Formal Ethics Opinion 500: Language Access in the Client-Lawyer Relationship: This opinion identifies the demographic shifts in the United States and some of the consequences this shift brings to lawyers. The opinion is important for its recognition that barriers to full communication may be cultural, linguistic or neurocognitive. Whatever the barrier, the opinion states that, the duty to communicate in RPC 1.4 puts the obligation on the attorney to assess the barrier and overcome it.

Another noteworthy opinion from the Pennsylvania Bar Association was the result of numerous requests relating to this issue:

  • Pennsylvania Bar Opinion 2021: Ethical Considerations Relating to Use of Medical Marijuana: The committee decided that a formal opinion would be welcome and concluded that, despite the fact that use of marijuana violates federal law, use of medical marijuana “would be in compliance with, and specifically authorized under, existing state law.” Thus, “obtaining a patient ID card as authorized under the MMA, and obtaining and using medical marijuana in compliance with the MMA, would not violate the Pennsylvania Rules of Professional Conduct.”

While the Rules of Professional Conduct guide our relationships with the various participants in the civil and criminal justice system, they are often unclear. The support provided by the bar associations can be invaluable. And don’t forget—if you have an ethics problem, there’s a hotline for that!

Ellen C. Brotmanof Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.

Reprinted with permission from the December 20, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

You can also find this article, as published, here.

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