A “Behind the Scenes” View of the State Bar Ethics Committee

Do you read the State Bar Journal? Here’s why you should.

As a newly appointed Advisory Member, I have attended two quarterly meetings of the State Bar Ethics Committee this year. Before President Keith Kapp appointed me to the Committee, I attended several meetings as an interested observer. As you might imagine, ethics issues and legal malpractice claims sometimes go hand in hand.

I would like to share a couple things I have learned in my brief time interacting with the Ethics Committee:

1. We all should read and follow the proposed ethics opinions published quarterly in the State Bar Journal and on the State Bar’s website, www.ncbar.gov.

Along with the Rules of Professional Conduct, the ethics opinions published by the State Bar govern our practice as lawyers. An ethics opinion is not arrived at lightly. If an ethics inquiry meets certain criteria, it is submitted to the Ethics Committee for consideration at its next quarterly meeting. The Committee will decide on the appropriate response and decide whether the response should be published. A proposed opinion will generally be published if the committee believes it will be of interest to the members of the bar at large. Proposed opinions are published in the Journal under the section captioned “Proposed Ethics Opinions” and on the State Bar’s website.

Here’s why you should read them, and more than that, why you should tell the Ethics Committee what you think.

The proposed ethics opinions are published with a note inviting written comment or a request to be heard concerning a proposed opinion. What I’ve learned is that each and every written comment and oral comment at the meeting is seriously considered and debated. If just one lawyer submits a comment, the proposed ethics opinion goes back to the Ethics Committee for consideration at the next quarterly meeting.  A proposed ethics opinion may go through this reconsideration process several times. As a part of this process, difficult or controversial issues may be assigned to a subcommittee of the Ethics Committee for closer study and recommendation to the Ethics Committee. Only after the Ethics Committee is satisfied with a proposed opinion is it submitted to the Council of the State Bar with a recommendation that it be approved as a Formal Ethics Opinion. 

The point is our voices are heard and seriously considered by the Ethics Committee. So don’t think “I’m not going to bother with writing to the State Bar on this proposed opinion; it won’t matter anyhow.”  If a proposed ethics opinion affects your practice and you think the State Bar has gotten it wrong, write in. Ask to speak on the issue at the next quarterly meeting. You will be glad you did, and you will feel more a part of the work of your State Bar.

2.  Ethics can be fun!

Have you ever sat on a jury (mock or real) and wondered how in the world folks who listened to the same evidence you listened to could arrive at a conclusion so different from yours? Well, the same is true with the folks on the Ethics Committee. This year, there are 23 members of the State Bar Council serving on the committee, along with 14 advisory members from the membership of the bar at large and appointed by the president of the State Bar. We all listen to the same inquiry and read the same Rules of Professional Responsibility, but often we come to completely different opinions on how those Rules should be applied to the facts, resulting in a proposed ethics opinion. It’s fascinating to watch, really!

For example, Proposed 2012 Formal Ethics Opinion 7, which was published for comment in the spring 2013 edition of the Journal, deals with copying represented persons on email communications. One question posed was this: If Lawyer A is replying to an email from Lawyer B in which Lawyer B has copied her own client, does the fact that Lawyer B copied her own client constitute implied consent for Lawyer A to “reply to all” in his response?

Some on the committee felt strongly that it did not; that the “no contact rule” expressed in Rule 4.2 of the Rules of Professional Conduct required the express consent of Lawyer B for Lawyer A to include Lawyer B’s client on his responsive email. Other members of the committee, business or transactional lawyers for example, were of the opinion that requiring lawyer A to get the express consent of Lawyer B before Lawyer A “replied to all” was not realistic in the sometimes fast-paced frenzy of getting the deal made or the transaction closed, and should not be required. Proposed 2012 Formal Ethics Opinion 7 has gone through a couple of iterations and at the April 2013 meeting of the Ethics Committee; it was referred back to subcommittee for further study. So stay tuned!

I hope you will decide to read the proposed ethics opinions regularly and, if you have an opinion, take the time to write the State Bar. I can promise you that your opinion will be taken seriously by the Ethics Committee. Since we all have to live by these ethics opinions, we should be involved in their creation.

Mark Scruggs is a claims attorney with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or at mscruggs@lawyersmutualnc.com.