March 2008
Ethics Line, May I Help You?
by Christopher Sutton
"Hello, Ethics Line. May I help you?" So begins one of 5,000 calls received each year from WSBA members seeking guidance about ethical issues encountered in their daily work. Since 1998, when the position of professional responsibility counsel was created by the Board of Governors, there has been a full-time lawyer at the end of your phone line ready to assist you in dealing with the difficult questions that frequently arise in your practice.
All Calls Confidential
Every day I receive 20 to 30 calls on the Ethics Line from lawyers across the state, from solos to large firms. Some frequently asked questions include:
• How long must I keep a client file?
• Is there a conflict of interest if I represent . . . ?
• My client lied about something important. Do I have to tell the court?
• I just got married. May I continue to use my maiden name?
• Opposing counsel lied in court today. Must I report it to the WSBA?
• My client is changing his mind every day about decisions in his case. What can I do?
The calls may last from five to 30 minutes and range from simple to complex. All calls are confidential and no records are kept. Since the Ethics Line is limited to WSBA members, callers must identify themselves and give their WSBA number. I tell each caller that, as a Bar staff member, I may offer my opinion on a matter but I am not permitted to speak officially for the Bar Association. An additional limitation arises from the nature of the Ethics Line itself — the high volume of calls. Within these constraints, I try to be as helpful as I can by offering the opinion of an experienced, disinterested lawyer who deals with the ethics rules daily.
Typical Calls
"Hello, Ethics Line. May I help you?" The caller responds: "Yes. I do estate planning and about three years ago I prepared a will, power of attorney, and medical directive for my client. My client was insistent that her daughter be disinherited and that she not be named or participate in any way in the client's care. Recently, I discovered that my former client may be incompetent and that her daughter has petitioned the court to become her guardian. I want to help my client. Do the RPCs allow me to take action to prevent the daughter from being named as guardian?"
The first issue raised was whether the lawyer had a duty to act. If not, should the lawyer do something and, finally, what could the lawyer ethically do?
Another caller asks: "Pursuant to a court order, I am holding funds in my trust account pending the outcome of litigation over ownership of the funds. I represent the plaintiff, who has prevailed at trial. A judgment has been entered in favor of the plaintiff. Defendant has appealed the judgment but has failed to stay enforcement of the judgment by posting a supersedeas bond. Plaintiff demands the funds immediately. It is ethical if I pay the funds to my client?"
The issue here is whether, in light of the lack of a supersedeas bond, the lawyer must comply with the client's demand for the funds held in trust or wait until the appeal is resolved.
Another caller asks: "I've been invited to speak to a church group about wills and probate. May I pass out my business cards to people who ask for them after my talk?"
This question entails the rules concerning solicitation.
Requesting a Written Ethics Opinion
Occasionally, a caller seeks guidance about a novel question not specifically answered by the RPCs or any ethics opinions. WSBA members may seek the guidance of the Rules of Professional Conduct Committee, so I suggest that a letter be sent to the Committee. The RPC Committee will respond in writing to the inquirer, who may rely on the direction of the Committee. Once the letter has been sent to the member, I redact identifying information from the letter (the name of the inquirer is confidential) and post it to the WSBA website so that it is easily available to the membership. Currently, there are more than 1,200 ethics opinions in this database, which is searchable.
Assistance from LOMAP
Other Lawyer Services staff help members who call the Ethics Line. For instance, callers who ask questions about the operation of their law offices are referred to the Law Office Management Assistance Program. The following inquires are examples of those sent to LOMAP:
• Should I have professional liability insurance and, if so, how much?
• What case-management software is best for a solo practitioner?
• How do I use Casemaker?
• Should I buy or lease my office equipment?
• Is it worthwhile to advertise in the yellow pages?
Conclusion
More than one-third of all calls deal with conflicts of interest. Calls about client confidentiality and terminating the lawyer-client relationship constitute another 20 percent each. The remaining calls concern everything from advertising to fee-sharing.
Whatever the nature of your question, don't hesitate to call the Ethics Line when an issue arises. No question is ever too simple to ask. Above all else, if you have that feeling in the pit of your stomach that something might be amiss, call the Ethics Line.
Christopher Sutton is a graduate of The College of William & Mary and the Marshall-Wythe School of Law. He has been practicing law for more than 30 years in many areas, including domestic relations, trusts and wills, and business transactions. In 1995, Mr. Sutton started working at the WSBA as disciplinary counsel. After two years, he became the professional responsibility counsel. He operated the Ethics Line and supervised the WSBA Alternative Dispute Resolution Program.
Many members have called Chris Sutton on the Ethics Line during Chris's 10 years as professional responsibility counsel. On February 1, Chris capped his legal career with retirement to Palm Springs, California. Since 1997, he helped thousands of attorneys talk through their ethical dilemmas and clarify the ethical issues involved. Chris also was a key member of the LOMAP Roadshows, and staffed several WSBA committees.We will certainly miss Chris's sage advice and his familiar presence as part of the Traveling Seminar that brings education and ethics credits to the smaller communities where our members practice. Thanks for everything and best wishes to you, Chris!
Rest assured, however, that the WSBA Ethics Line will continue to be staffed with knowledgeable, helpful lawyers who are eager to be of assistance to members. The Ethics Line is open Monday through Friday during normal business hours.
