How a Question Becomes an Ethics Opinion

How a Question Becomes an Ethics Opinion

10.11.2019

By Kathleen Mulligan Baxter

The New York State Bar Association’s Committee on Professional Ethics was formed on June 1, 1952 to “answer inquiries as to whether conduct of a member of the legal profession complies with the applicable New York rules of legal or judicial ethics” and then issue ethics opinions if it believes such guidance would benefit the profession.

In 1964, the committee issued its first ethics opinion, which addressed the propriety of sending a notice to clients about a change in the law. The answer at that time was pre-Bates v. State Bar of Arizona: “to broadcast it generally to all … clients would smack of solicitation and be improper.”

Since then, the committee has issued over 1,100 opinions on various topics. In the last year, these have included conflicts of interest for a village attorney and a town supervisor, the sale of a law practice, permissible firm names, operating a non-legal business, and preserving confidential information.

The committee is made up of 25 members from across New York state who practice in a wide range of settings including large and small firms and solo practitioners, government, in-house counsel, and law school faculty. Their areas of practice vary but they all share the goal of helping members of the profession understand their ethical obligations under the New York Rules of Professional Conduct.

How does the committee develop its opinions? There is a dedicated e-mail address, monitored by NYSBA staff, to which members can submit inquiries: ethics@nysba.org.

An inquiry must be from a lawyer and relate to the lawyer’s own proposed ethical conduct. The committee cannot address questions relating to conduct that has already taken place or about another lawyer’s conduct. In addition, the committee cannot address questions of law arising under New York statutes, case law, or court rules other than the Rules of Professional Conduct. Finally, the committee cannot address inquiries that are being litigated. In such instances, the tribunal, as defined in Rule 1.0(w), is the appropriate authority to address the topic.

When an inquiry is submitted, staff will first research the topic to see whether there are existing opinions that are responsive to the question. If so, staff will e-mail links to those opinions.

If no opinions exist, the inquiry will be forwarded to an individual member of the committee to prepare a draft opinion. The full committee will then review the draft and discuss it at one of the committee’s monthly meetings. The committee’s discussions are lively and frequently result in significant changes being made to a draft. When the committee approves an opinion, the draft will be put in final form and sent to the committee chair for final edits. Once the committee chair has finished editing, the opinion is posted on NYSBA’s website.

Inquiries submitted to the committee are confidential. Only the committee’s chair, secretary, the member assigned to prepare a draft, and staff know the identity of an inquirer. No identifying information is included in the opinion.

The committee welcomes your ethics questions. If you have a question, you may submit it by email to ethics@nysba.org, by fax at 518-487-5694, or by mail to Committee on Professional Ethics, One Elk Street, Albany, NY 12207. Please include your name, mailing address, telephone, and fax number.