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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2308" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/01/Gavel-300x200.jpg" alt="Gavel" width="300" height="200">What should you do when you have a thorny legal ethics problem that comes up in the course of representing a client?&nbsp; The answer is not &ldquo;Call Ghostbusters.&rdquo;&nbsp; There are a variety of ways to get ethics advice, and some&nbsp;could be&nbsp;better than others in putting you in the best position in case someone should second-guess your conduct later.
We&rsquo;ve <a href="https://www.thelawforlawyerstoday.com/2016/01/2272/">discussed </a>the case of the Illinois lawyer whose defense&nbsp;against disciplinary charges&nbsp;includes&nbsp;advice of counsel.&nbsp; The lawyer&nbsp;is contesting charges that he made misrepresentations to a court when he entered into a settlement agreement on behalf of his client without informing the court the client was already dead.&nbsp; In his <a href="http://www.iardc.org/ANS15PR0100.pdf">answer </a>to the disciplinary complaint, the lawyer said that he conferred with his law partners about whether the duty of confidentiality required him to keep mum about the client&rsquo;s death and, presumably with their advice, concluded that it did.
That wouldn&rsquo;t seem to be a very strong advice-of-counsel defense, at least in the absence of any evidence that the lawyer&rsquo;s partners had some legal ethics experience or&nbsp;expertise.
Spectrum of legal ethics advice
The&nbsp;informal, internal&nbsp;&ldquo;let me bounce this situation off you&rdquo; advice the lawyer seems to have gotten is at one end of the spectrum when it comes to ethics advice.&nbsp; What are the other options?
<ul>
<li>At the other end&nbsp;of the spectrum would be&nbsp;an advisory opinion from the most official ethics source available in&nbsp;your jurisdiction.&nbsp;&nbsp;In my home state of Ohio, for instance, the state supreme court&rsquo;s <a href="http://www.supremecourt.ohio.gov/Boards/BOC/default.aspx">Board of Professional Conduct </a>issues such opinions (although the Board notes that its opinions are &ldquo;non-binding&rdquo;).&nbsp; If you inquire and receive an advisory opinion&nbsp;before acting, and if your conduct comports with the opinion, there would seem to be a near zero chance of running into disciplinary trouble.&nbsp; The downside is that the procedure is usually slow; it takes due deliberation, and the process might not be nimble enough to respond to your issue when you need it.</li>
<li>In most jurisdictions, bar associations (and sometimes multiple local ones) also issue ethics opinions, ranging from formal advisory opinions to informal guidance.&nbsp; That process might possibly be quicker, but may still not be&nbsp;quick enough.</li>
<li>Many state and local bar associations have ethics hot lines, where you can get guidance.&nbsp; If you are concerned enough about the issue to seek advice, you probably want definitive advice you can take to the bank.&nbsp; Staffers on&nbsp;a hot line might be reluctant to give you that.</li>
<li>If you practice with a large firm, you probably have access to an in-house ethics guru.&nbsp; Most sizeable firms have an ethics committee, an Office of General Counsel, or a partner who serves as General Counsel to the firm.&nbsp; That&rsquo;s an excellent place to turn to for advice.&nbsp; (We&rsquo;ve <a href="https://www.thelawforlawyerstoday.com/2015/02/in-house-firm-counsel-privilege-will-the-favorable-trend-continue/">written before </a>about how attorney-client privilege rules&nbsp;seem to be&nbsp;evolving in the direction of recognizing privilege for such consultations.)</li>
<li>Finally,&nbsp;if you don&rsquo;t have firm resources of your own, a growing practice niche consists of legal ethics and professional responsibility.&nbsp; Practitioners in that area will have experience and knowledge of the ethics precepts and case authorities governing a host of problems that you might run into, from conflicts to confidentiality, marketing to law firm mergers.</li>
</ul>
Good counsel?
As we pointed out in our previous discussion, the fact that a lawyer receives&nbsp;ethics advice before acting&nbsp;might not&nbsp;completely exonerate him or her from misconduct charges, but it could be a mitigating factor &mdash; one that might lighten the consequences of an ethical mis-step, such as reducing&nbsp;a possible suspension down to a reprimand.
But in order to effectively invoke advice of counsel,&nbsp; getting off-the-cuff advice is unlikely to be sufficient.&nbsp; In the context of a criminal case, for example, an advice-of-counsel defense generally requires a showing that&nbsp;before taking action the defendant sought the advice of a competent lawyer, in good faith, for the specific purpose of getting advice on the lawfulness of the possible future conduct, made a&nbsp;full and accurate report of all known material facts, and&nbsp;acted strictly in accordance with the advice.&nbsp; See, e.g., United States v. Cheek, 3 F.3d 1057, 1061 (7th Cir 1993).&nbsp; Whether the Illinois disciplinary board will apply that standard to the advice-of-counsel defense before it is an open question.
Watch this space for future developments in the Illinois case.&nbsp; But in the meantime, be careful out there.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

All legal ethics advice is not equal:  take these steps to protect yourself