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 Standing Committee on Ethics and Professional Responsibility filed a revised Resolution and Report 107 with the House of Delegates on July 10. Resolution and Report 107 proposes 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, only in the form of gifts not loans. Permitted gifts include contributions for food, rent, transportation, medicine, and other basic living expenses. Similar exceptions, variously worded, appear in the rules of eleven U.S. jurisdictions. Resolution and Report 107 is co-sponsored by the Standing Committee on Legal Aid and Indigent Defense. It is supported by many ABA entities and individuals.

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    Recent Ethics Opinions

    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.   See video

    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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