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. 

    Proposal on Rule 1.8(e)

    The ABA House of Delegates amended Model Rule of Professional Conduct 1.8(e) at the 2020 Annual Meeting of the association. This action was taken at the request of the ABA Standing Committee on Ethics and Professional Responsibility. 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 and Report 107 was co-sponsored by the Standing Committee on Legal Aid and Indigent Defense and supported by many ABA entities and individuals.

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    Recent Ethics Opinions

    Formal Opinion 498

    The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and-mortar law firm.1 When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and nonlawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.

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    Formal Opinion 497

    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. But neither Rule specifies when the interests of a current client are “materially adverse” to those of a former client or prospective client. Some materially adverse situations are typically clear, such as, negotiating or litigating against a former or prospective client on the same or a substantially related matter, attacking the work done for a former client on behalf of a current client, or, in many but not all instances, cross-examining a former or prospective client. Where a former client is not a party to a current matter, such as proceedings where the lawyer is attacking her prior work for the former client, the adverseness must be assessed to determine if it is material. General economic or financial adverseness alone does not constitute material adverseness.

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    Formal Opinion 496

    Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule. As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.

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    Formal Opinion 495

    Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.

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    Formal Opinion 494

    Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer. A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel. Lawyers must examine the nature of the relationship to determine if it creates a Rule 1.7(a)(2) conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

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    Formal Opinion 493

    This opinion offers guidance on the purpose, scope, and application of Model Rule 8.4(g). The Rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.

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    Formal Opinion 492

    A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).

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    Formal Opinion 491

    Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent.That knowledge may be inferred from the circumstances,including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly,where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4.

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    Formal Opinion 490

    This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it.

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    Formal Opinion 489

    Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm. Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances. Firm notification requirements cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter. Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods.

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    Formal Opinion 488

    Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned—including cases implicating some familial and personal relationships—but it is silent with respect to obligations imposed by other relationships.

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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

    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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