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Business Law Today

In search of an ethics guide
The author owns up: He's a nerd on the subject
By Lucian T. Pera
The ethics nerd. Every law office has, or should have, at least one. You know, the guy or gal the other lawyers in the office frantically descend on when they need to sue a company they represented last year, or when they really want to contact that former CFO of an opposing party. Yes, I know, the politically correct term these days is "firm counsel" or "ethics counsel," or, in larger firms, even "general counsel." But we're still ethics nerds.

But what do you do when they're on vacation, or actually practicing law themselves? Well, when prayer fails, you can try to find the answer yourself. But that does require that you have some minimum level of resources at hand on legal ethics and related issues. Do you? Today, we're going to find out.

This article will sketch for you the most effective basic ethics tools you can and should have available to you, even if they are only beautifully arranged behind the glass door in the "Break-in-Case-of-Ethics-Emergency" box in your office.

First and foremost, you need to have a copy of the rules handy. Specifically, you need to have handy a current copy of the ethics rules in the jurisdictions in which you regularly practice. Usually, this is easy, but here are a few suggestions for those in doubt.

The high courts and state bars of many jurisdictions publish handy paperbound compilations of their rules, and many jurisdictions' rules are already hidden away in the pamphlets many trial lawyers have of their supreme court's rules. These are often cheap or free in hard copy, and sometimes downloadable free.

Almost every jurisdiction's current ethics rules are also readily available on the Web, sometimes in multiple locations, and you should bookmark them right now. Among the sources that will get you to these sites are the American Bar Association's Center for Professional Responsibility Web site listing of state or other Web resources (http://www.abanet.org/cpr/links.html), and Cornell Law School's pioneering online American Legal Ethics Library, with its links to various state resources (http://www.law.cornell.edu/ethics/).

Which jurisdictions matter to you? For some, who never practice outside one state, it's easy, but, remember, you would be well advised to have the rules handy from every jurisdiction in which you practice regularly. This includes federal and state agencies, a number of which (such as the U.S. Patent and Trademark Office) have adopted their own ethics rules, and federal district courts, where the rules are usually borrowed from the state in which they sit. And these other agency and federal jurisdictions sometimes vary or add just one or two rules of their own to the ethics rules they borrow from another jurisdiction, so some care is appropriate.

Many jurisdictions also have available one or more secondary sources that act essentially as treatises on ethics and lawyering. If it's any good at all, it should also be within arm's reach. These range from a simple version of your jurisdiction's statutory code that includes a copy of your ethics rules annotated with cases and ethics opinions, to a handbook of forms, to guidelines for trust accounting, to full-blown books on the law of ethics in your state. Some states even have multiple sources like this.

One particularly useful source of this kind is maintained as part of Cornell's American Legal Ethics Library, mentioned above. On this site, local lawyers have prepared extensive narrative treatments of the law of ethics in 19 jurisdictions, all with a common outline and citing local case law and other authority, with links to the rule text.

Because these secondary sources can be easy or hard to find, the best advice is to ask around. Ask your ethics nerd, check your state bar's Web site for publications, or maybe even e-mail the chair of your state bar's ethics committee. Spending the money to buy such a local treatise could be the best money you ever spend on ethics resources.

Most jurisdictions have some source of written ethics guidance in the form of ethics opinions, often from a state or local bar ethics committee. The authority these carry varies widely, but their value often far outweighs any precedential authority established for them by rule or case law. As a practical matter, when the only available guidance on an issue comes from a state bar ethics committee, and where the opinion is at least moderately well-reasoned, an ethics opinion can have the weight of a supreme court opinion for many judges.

Where do you find them? Well, that can be a challenge. Before the Internet ("Yes, Virginia, the phrase 'carbon copy' used to refer to something lawyers and their secretaries actually used."), it was almost impossible to find some states' ethics opinions. Today, your odds are very good of being able to find, available for free on the Internet, the ethics opinions of almost all jurisdictions. Also, some jurisdictions collect and publish their ethics opinions.

Odds are, the organizations that publish ethics opinions in your jurisdiction will host on their Web sites — and, if you're lucky, index or allow searches of — their opinions. For pointers to these sites, see the ABA Center for Professional Responsibility listing of state ethics resources (http://www.abanet.org/cpr/links.html), and Cornell's American Legal Ethics Library's state links (http://www.law.cornell.edu/ethics/). Also, LEXIS and WestLaw make most existing ethics opinions available as part of their ethics offerings.

OK, so now your emergency ethics kit includes your jurisdiction's rules, along with access to any available secondary source for your jurisdiction and access to available ethics opinions. With luck, you've been able to accomplish this at little or no expense, especially if your jurisdiction offers these resources on the Web for free. Can you stop there?

Quite possibly so. For example, if you practice mainly in New York, resources available on the Internet as well as Professor Roy Simon's Simon's New York Code of Professional Responsibility Annotated (Thomson West 2005, updated annually; $131; http://www.thomsonwest.com/store/product.asp?product_id=14691598) should give you as complete a state ethics library as any normal, nonethics-nerd lawyer would need.

In some smaller states, by way of counter-example, having a copy of the state's ethics rules and access to a set of ethics opinions on the Web is a complete state library in itself. In Mississippi, for example, the Mississippi Rules of Professional Conduct are fully available on the Mississippi Supreme Court's Web site (http://www.mssc.state.ms.us/rules/default.asp), Mississippi State Bar ethics opinions are available in full text and searchable on the bar's Web site (http://www.msbar.org/ethic_opinions.php), and the bar also publishes several ethics-related pamphlets that it fully republishes on its Web site (http://www.msbar.org/ professional_responsibility.php). Access to these is likewise probably all that an ordinary practicing Mississippi lawyer would need for most day-to-day ethics questions.

My advice, however, is to go just two steps further — investigate whether there are ethics resources that are specific to the area (or areas) in which you practice and consider getting a national, general ethics treatise.

In many practice areas, there are quite helpful resources that collect authorities and provide guidance that is specific to that particular area of practice. While they can be hard to find, the pursuit is often worth the effort.

For example, Professor Irma S. Russell has authored Issues of Legal Ethics in the Practice of Environmental Law (ABA Section of Environment, Energy, and Resources 2003; $79.95, for Section members, $64.95; http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.Search&type=b&k=environmental+ethics&x=0&y=0). Any environmental lawyer would be well-served by having this extremely helpful, almost-500-page, book on her desk.

In a similar vein, the American Immigration Lawyers Association has several publications, including Ethics in a Brave New World (AILA 2004; $39, $29 for members; http://www.ailapubs.org/etinbravneww.html), and a section on its Web site devoted to legal ethics for immigration lawyers (http://www.aila.org/content/default.aspx?docid=15764), all of which provide practice-area-specific guidance on legal ethics. Some of these resources are available to anyone on the group's Web site; some are available only to members.

The prestigious American College of Trust and Estate Counsel (ACTEC) has published, both in hard copy and on the Web, its Commentaries on the Model Rules of Professional Conduct (available to the public at http://www.actec.org/pubInfoArk/comm/toc.html, as well as a series of sample engagement letters for the trusts and estate lawyer (available to the public at http://www.actec.org/pubInfoArk/comm/engltrtoc.htm).

Both appear to be a little out of date, having last been updated in 1999 (that is, before the ABA Ethics 2000 revisions were adopted), but they can still provide assistance to the careful lawyer. They are available in hard copy at the low price of $9.50 (http://www.actec.org/public/commorder.asp).

For those practicing media law, the Media Law Resource Center, the leading national organization of media outlets and their lawyers, has published on its Web site (www.medialaw.org) a fine series of articles on ethics issues arising in this area. It's members-only, but most media lawyers are members.

This is just a random sampling. Check with the specialty bars in your practice area, whether national or state organizations, and ask around.

That second further step? Think about trying to vacation-proof your ethics resources.

A lawyer's ethics library does not really get a workout unless the question is a tricky one, or matters quite a lot to the lawyer or her client. With the abundance of new national resources on ethics that have emerged over the last decade, and with more jurisdictions moving their rules closer to the ABA Model Rules of Professional Conduct, there are a number of national treatises that can neatly supplement a lawyer's own state's resources and get him to answers that lie outside his own jurisdiction. Two come to mind most quickly.

My personal favorite for the regular lawyer is a handy, nearly 2,000-page paperback by Professors John S. Dzienkowski and Ronald D. Rotunda, called Legal Ethics: The Lawyer's Deskbook on Professional Responsibility, 2006 ed. (Thomson West; $84.50; http://west.thomson.com/product/17503733/product.asp). Published in conjunction with the ABA, the recently published 2006 edition includes a pretty complete treatment of almost every ethics issue you will ever see, with short, but thorough, narrative sections about each, and appropriate and complete cites to all the relevant ABA opinions and many of the leading cases from across the country.

Another contender for a single-volume, reasonably priced national resource is the ABA's Annotated Model Rules of Professional Conduct (ABA Center for Professional Responsibility; 5th ed 2003.; $98 list price, with discounts down to $73.50 for certain ABA members; http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5610171).

The Annotated Model Rules provides narrative summaries of many rules-related issues, organized by ABA Model Rule, with citations to and discussions of all relevant ABA opinions and much case law. Its coverage is not quite as broad as the Rotunda and Dzienkowski Deskbook, but it's a well-written alternative that gets you quickly to the most important opinions and other sources nationally.

One other viable substitute for such a national treatise is the set of loss-prevention materials that some legal malpractice insurers make available to their insureds. For example, if your law firm is a member of Attorneys Liability Assurance Society (ALAS), be absolutely sure to have your loss prevention partner give you access, whether in hard copy or online, to their Loss Prevention Manual and related materials. Aon, which brokers legal malpractice insurance for many large law firms, also periodically provides some similarly excellent materials to its client law firms through its loss prevention counsel.

There are lots of free things on the Web, many of them very useful, but there's one more absolutely indispensable site you need to bookmark: www.FreivogelOnConflicts.com.

The site contains everything you need to know about conflicts of interest, period. It is authored entirely by William Freivogel of Chicago, now senior vice president, loss prevention, for Aon Risk Services Inc., and also an ALAS loss prevention veteran, who scrupulously keeps it up to date on a weekly, if not daily, basis. Bookmark it. Now.

But what if you want to go a little deeper, or if money is no object — what other valuable ethics resources could you buy? Well, here's an idiosyncratic list your office ethics nerd would almost certainly bless, even if he might have additions:

  • ABA/BNA Lawyers' Manual on Professional Conduct (ABA and BNA; $1,358 for an annual subscription to the print version, $1,542 for an annual subscription to the electronic version; http://www.bna.com/products/lit/mopc.htm). Still the "bible" of ethics and professional responsibility, this publication is a combination loose-leaf treatise and current awareness service, with solid coverage of pretty much any ethics topic out there. There is an electronic version available online, with excellent search capability and a nifty interface that makes it much easier to use than the print version. The bi-weekly Current Reports awareness service (available by e-mail) is the gold standard for those who try to really keep up in this field.
  • The Law of Lawyering (Aspen Law & Business 3rd ed. 2001, with annual supplements; $345; http://www.aspenpublishers.com/Product.asp?catalog%5Fname=Aspen&category%5Fname=&product%5Fid=0735516081&Mode=SEARCH&ProductType=M). Professors Geoffrey C. Hazard and W. William Hodes author this two-volume loose-leaf treatise, which remains the standard work in the field. Hazard was the reporter for the original 1983 ABA Model Rules of Professional Conduct and a member of the ABA Ethics 2000 Commission that revised them. Hazard and Hodes is probably the ethics treatise most frequently cited by courts, and it provides really authoritative treatment on all ethics issues.
  • Restatement (Third) of the Law Governing Lawyers (ALI; $195 for the two-volume hardbound edition, $75 for the one-volume paperback; https://www.ali.org/ali/LGL.htm). Approved by the American Law Institute in 1998 after many years of work, this restatement was published in 2000 and has rapidly become a standard reference on almost all the issues it touches. Its coverage is broader than just ethics, including numerous malpractice, attorney-client privilege, and other topics, with the usual authoritative treatment and numerous, usually well-chosen citations. The paperback version is a little-known bargain, but you might need to buy the hardback's pocket part to supplement it.
  • Lawyer Law (ABA; $195 list price, $170 for ABA members; http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=2150009). This recent ABA publication, masterminded by Professor Tom Morgan, is a very detailed, full-text comparison of the current ABA Model Rules of Professional Conduct and the Restatement of the Law Governing Lawyers, along with some other editorial enhancements pointing to other sources and summarizing the law. A very useful tool, and maybe a complete substitute for the Restatement.
  • Lawyer Disqualification (Banks & Jordan; $179; http://www.banksandjordan.com/catalog.html). This recent (2003 with a 2005 supplement) addition to the literature of conflicts of interest and other bases for lawyer disqualification covers substantive and procedural issues comprehensively, with cases from coast to coast. Combined with Bill Freivogel's site, www.FreivogelOnConflicts.com, a reader would have virtually complete and comprehensive coverage. Put another way, if you have a conflict of interest problem and you can't find an answer in Flamm or Freivogel, there isn't one.
Finally, a few very useful odds and ends.

Touching the borders of matters ethical are a number of other fields, but the one in which research resources are most frequently needed is the area of attorney-client privilege and work product. While there are always the old stalwarts, like Wigmore on Evidence and Weinstein's Federal Evidence , two relatively recent, very well-organized publications often provide quick and solid answers to these issues:

  • Attorney-Client Privilege in the United States (Thomson West 2nd ed.1999, with annual supplements; $260; http://west.thomson.com/product/13507262/product.asp). Professor Paul R. Rice's two-volume loose-leaf treatise is, in this writer's experience, the single most accurate, authoritative and helpful publication on privilege issues. It also comes with a handy CD-ROM containing excellent individual chapters (all organized on the same outline) on the law of privilege in every American jurisdiction.
  • The Attorney-Client Privilege and the Work Product Doctrine (ABA Section of Litigation 4th ed. 2001, with separate 2004 supplement; $165, and $135 for Section members; http://www.abanet.org/abastore/index.cfm?section=main&fm=Product.AddToCart&pid=5310292). This ABA Section of Litigation handbook, authored by Chicago lawyer Edna Selan Epstein, is mostly in outline form, and contains quick, very effective treatments of what seem to be all the essential cases on all the important privilege and work product issues faced by trial lawyers.
Now that you've had the guided tour of essential ethics resources, be sure to check off these items from your to-do list:

  1. Get the ethics rules of your jurisdiction (or jurisdictions) readily available to you.
  2. Buy or bookmark any available secondary source on your jurisdiction's ethics law.
  3. Get access to one decent national resource on ethics.
  4. Tell your office ethics nerd to add an extra day onto her vacation.
Pera is a partner at Adams and Reese LLP, Memphis, Tenn. He admits to being an ethics nerd. His e-mail is lucian.pera@arlaw.com.

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