ABA Ethics Opinion Warns of Issues Raised by Law Firm Ethics Counsel
More law firms are appointing ethics counsel, a “valuable” service that nonetheless raises issues of disclosure and conflicts of interest, according to an ABA ethics opinion.
In some instances, a law firm would have to withdraw from representing a client because of the conflict created when an erring lawyer tells the ethics counsel of misconduct during representation. And the information gleaned by the ethics counsel may have to be disclosed–to others in the firm and even to disciplinary authorities, according to an ABA press release summarizing the opinion.
Ethics counsel are appointed to advise law firms or individuals about questions of professional conduct. The ethics counsel usually represents the law firm rather than individual lawyers, and it would be wise for the ethics counsel to make the relationship clear, according to Formal Opinion 08-453 (PDF).
If an ethics counsel consults with a lawyer who rejects the counsel’s advice, or whose conduct “is sufficiently serious or urgent,” the counsel will be required to refer the matter to a higher authority in a law firm, the opinion says.
Another issue is when disciplinary authorities should be notified. The ethics counsel “could choose to reveal information to disciplinary authorities or to others if the firm management fails or refuses to correct clearly illegal conduct that reasonably might be attributed to others in the firm and would cause substantial injury to the firm,” the opinion says.
Reporting to disciplinary authorities may be required when the ethics counsel learns of a rule violation that raises substantial questions about a lawyer’s honesty, trustworthiness or fitness. Because the client of the ethics counsel is likely the law firm, it would have to consent to reporting, according to the opinion. In some instances, client consent would also be required.
The opinion also raises the issue of conflicts of interest. A consultation with a lawyer who engaged in misconduct during a representation could create a conflict between the law firm and the client represented by the erring lawyer, according to the opinion.
“A personal interest conflict will arise if the principal goal of the ethics consultation is to protect the interest of the consulting lawyer or law firm from the consequences of a firm lawyer’s misconduct,” the opinion says. “In that event, the representation may continue only if the client gives informed consent.”
