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    Standing Committee on Ethics and Professional Responsibility

    The Standing Committee on Ethics and Professional Responsibility issues ethics opinions interpreting both the Model Rules of Professional Conduct and the Model Code of Judicial Conduct. ABA Formal Opinions have been cited as persuasive when courts around the nation interpret state-adopted Rules of Professional Conduct. 

    House of Delegates Adopts Revised Resolution 100 amending ABA Model Rule of Professional Conduct 1.16

    The Standing Committees on Ethics and Professional Responsibility and Professional Regulation developed Resolution 100 recommending amendments to Model Rule of Professional Conduct 1.16 concerning lawyers’ obligations relating to client intake. The House adopted Revised Resolution 100 at its meeting in August 2023 in Denver.

    View - Revised Resolution

    Recent Ethics Opinions

    Formal Opinion 508 - The Ethics of Witness Preparation

    A lawyer’s role in preparing a witness to testify and providing testimonial guidance is not only an accepted professional function; it is considered an essential tactical component of a lawyer’s advocacy in a matter in which a client or witness will provide testimony. Under the Model Rules of Professional Conduct1 governing the client-lawyer relationship and a lawyer’s duties as an advisor, the failure adequately to prepare a witness would in many situations be classified as an ethical violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible. Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b). The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously “coach” witnesses in new and ethically problematic ways.

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    Formal Opinion 507 - Office Sharing Arrangements with Other Lawyers

    It is generally permissible for lawyers to participate in office sharing arrangements with other lawyers under the ABA Model Rules of Professional Conduct. At the same time, office sharing lawyers should appreciate that such arrangements will require them to take appropriate measures to comply with their ethical duties concerning the confidentiality of information, conflicts of interest, supervision of non-lawyers, and communications about their services. The nature and extent of any additional safeguards will necessarily depend on the circumstances of each arrangement.

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    Formal Opinion 506 - Responsibilities Regarding Nonlawyer Assistants

    A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation.

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    Formal Opinion 505 - Fees Paid in Advance for Contemplated Services

    Under the Model Rules of Professional Conduct, a fee paid to a lawyer in advance for services to be rendered in the future must be placed in a client trust account and may be withdrawn only as earned by the performance of the contemplated services. This protects client funds and promotes client access to legal services in the event the representation terminates before all contemplated services have been rendered. All fees must be reasonable, and unearned fees must be returned to the client. Therefore, it is not accurate to label a fee “nonrefundable” before it actually has been earned, and labels do not dictate whether a fee has been earned.

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    Formal Opinion 504 - Choice of Law

    When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.

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    Formal Opinion 503 - “Reply All” in Electronic Communications

    In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.

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    Formal Opinion 502 - Communication with a Represented Person by a Pro Se Lawyer

    Under Model Rule 4.2,1 if a person is represented in a matter, lawyers for others in the matter may not communicate with that represented person about the subject of the representation but instead must communicate about the matter through the person’s lawyer, unless the communication is authorized by law or court order or consented to by the person’s lawyer.

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    Formal Opinion 501 - Solicitation

    ABA Model Rule of Professional Conduct 7.3(a), amended in 2018, contains a narrowed definition of what constitutes a “solicitation.” Rule 7.3(b) delineates the type of solicitation that is expressly prohibited. Rules 8.4(a) and 5.3 extend a lawyer’s responsibility for solicitation prohibitions not only to actions carried out by the lawyer directly but also to the acts of persons employed by, retained by, or associated with the lawyer under certain circumstances. Rule 5.3(b) requires lawyer supervisors to make reasonable efforts to ensure that all persons employed, retained, or associated with the lawyer are trained to comply with the Rules of Professional Conduct, including Rule 7.3(b)’s prohibition.

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    Formal Opinion 500 - Language Access in the Client-Lawyer Relationship

    Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished.

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    Formal Opinion 499 - Passive Investment in Alternative Business Structures

    A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms.1 To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction.

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    Latest Ethics Opinions

    Visit the Ethics Opinions homepage to access all recent ethics opinions and the archive library.

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    Model Rules of Professional Conduct
    7.1, 7.2, 7.3, 7.4 & 7.5

    Model Code of Judicial Conduct Rule 2.11 Revision

    Model Rule of Professional Conduct 8.4

    Past Events

    Amendments to Rule 1.8

    • The ABA House of Delegates amended Model Rule of Professional Conduct 1.8(e) at the 2020 Annual Meeting of the association. The Ethics Committee filed Revised Resolution and Report 107 proposing an amendment to Model Rule 1.8(e) to permit lawyers representing indigent clients pro bono individually or through a non-profit or public interest organization or through a law school clinical or pro bono program to provide modest assistance for living expenses. Permitted gifts include contributions for food, rent, transportation, medicine, and other basic living expenses. 

    Resolution 109 Adopted By ABA HOD

    • On August 8, 2016 the ABA House of Delegates approved Standing Committee on Ethics resolution 109 to amend Model Rule 8.4 to bring into the blackletter of the ABA Model Rules of Professional Conduct an anti-harassment and antidiscrimination provision.   A list of co-sponsors and supporters as well as previous drafts and comments is available here.   

    April 2016

    • The Standing Committee on Ethics and Professional Responsibility voted to file a resolution with the ABA House of Delegates for consideration in August 2016 recommending that Model Rule of Professional Conduct 8.4 be amended to create new paragraph (g).  This new paragraph would bring into the black letter of the Model Rules an anti-discrimination and anti-harassment provision.  The resolution would also include the creation of three new Comments.  A redlined version of the proposal is available here.

    December 2015

    • The Standing Committee on Ethics and Professional Responsibility issued a draft proposal to amend ABA Model Rule of Professional Conduct 8.4 and Comment [3] to Rule 8.4. 

      A public hearing was held on Sunday, February 7, 2016 from 3:00 p.m. – 5:00 p.m. at the Marriott Marquis San Diego Marina, 3rd Floor, South Tower, Balboa & Mission Hills Meeting Rooms, San Diego, CA. 

      After reviewing comments from the public hearing and comments submitted in writing, the Committee will resume its work with the aim of producing a final Report and Resolution for consideration by the ABA House of Delegates at the August 2016 Annual Meeting in San Francisco, CA.

      Please visit the Model Rule 8.4 homepage to see the proposal, the memorandum and all comments received to date.  To access the proposal directly, click here.  The memorandum explaining the Ethics Committee’s drafting choices is also available here.  The proposal reflects the efforts of the Ethics Committee to examine how the Model Rules of Professional Conduct address discrimination and harassment by lawyers and is meant to further focus and advance the discussion on this important issue.

    July 2015

    • In conjunction with the ABA Annual Meeting, the Standing Committee on Ethics and Professional Responsibility held a roundtable discussion on a working discussion draft of revisions to ABA Model Rule of Professional Conduct 8.4. Under consideration was relocating the prohibition against knowingly discriminating or harassing another person in conduct relating to the practice of law or in the practice of law from current Comment [3] into the black letter of the Rule as new paragraph (g). Additional revisions were also made to the Rule.  Interested persons were encouraged to come to the roundtable to discuss the draft and offer their recommendations and suggestions. 

      The Working Discussion Draft from this rountable is available here. More information about language choices the Committee made is available here.

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