December 2010 • Volume 98 • Number 12 • Page 610
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ISBA ethics opinions: updated and easier to research
A new searchable online index of ethics opinions, freshly updated in light of the new rules, makes them a better resource than ever for ISBA members.
Among the valuable free benefits accompanying ISBA membership is access to ISBA's online archive of more than 300 Ethics Advisory Opinions and the ISBA Ethics Infoline at (800) 252-8908. With a newly revamped online index, the opinion archive -updated in light of the new Rules of Professional Conduct - is even more accessible.
Reviewing existing opinions under the new rules
In the wake of the supreme court's adoption of the Illinois Rules of Professional Conduct of 2010, ISBA's Standing Committee on Professional Conduct began reviewing each of ISBA's 377 Ethics Advisory Opinions. Their mission: Determining whether the opinions were consistent with the new rules.
Toward accomplishing that goal, the committee met in three intensive two-day sessions in December 2009, and March and May 2010. Members came to those meetings with recommendations on opinions they'd been assigned to review and prepared to discuss those that others had reviewed, said Chicago lawyer Zeophus Williams, who chaired the committee through the project.
"We were very fortunate in having individuals on our committee who participated in developing prior versions of the rules in 1980 and 1990," said Williams. "Those members helped the rest of us to understand the purposes and rationales for various rules, and what result the committee was trying to obtain when they issued those rules." Some of the ethics opinions, Williams said, were no longer meaningful in light of the new 2010 rules, and others are no longer necessary because the issues that gave rise to them are no longer present or have been addressed by statute, as in the case of some opinions having to do with advertising and soliciting business.
One member who had written some of the ethics opinions under review was Robert Creamer of Evanston, who co-chaired the ISBA/CBA Joint Committee on Ethics 2000. He said, "The process was very careful and thorough. People did their homework, and we who had written ethics opinions weren't necessarily in love with our own work. Fortunately, the rules governing professional conduct didn't change that much, but there were opinions that were not as well expressed or thought through as they could have been."
Once committee members completed their review, the Board of Governors reaffirmed around 325 of the 350 to 377 opinions, said ISBA General Counsel Charles J. Northrup. Creamer said, "It's important for practitioners to know that now, when they look at an opinion on ISBA's website, they can be confident that it's up to date and as accurate as we can make it."
ISBA still "here to do these formal opinions"
Northrup and First Assistant Counsel Melinda Bentley have also extensively revised the online index to the ethics opinions, making it far more useful and user-friendly. The ethics opinion database is also searchable. Both the opinions and index are available to members on ISBA's website under the "Practice Tools" tab in the "Ethics" category at http://www.isba.org/ethics.
Current committee chair William Broom of Carbondale and Board liaison Judge Naomi Schuster encourage members to use ISBA's resources when faced with a sticky question of ethics. Those resources include not only ISBA's Ethics Infoline for quick guidance, which members can access by calling ISBA's toll-free number at (800) 252-8908, but also the committee's availability for drafting additional formal ethics opinions. "We want members to know that we're here to do these formal opinions," said Broom.
How can a lawyer know whether an issue is appropriate for a formal ethics opinion? "Any question is worthy. If the lawyer is feeling uncomfortable enough to seek guidance, it's not a stupid question," said Northrup. "We don't get simple questions -those have already been answered," added Broom. "Changes in technology drive many of the questions we get."
To request that a new ethics opinion be issued, a member should send a letter to ISBA's legal department explaining the facts giving rise to the question, Northrup said. After the legal department redacts identifying information, including the identity of the lawyer requesting the opinion, the question will be placed on the committee's agenda for discussion. "The committee decides whether it's appropriate for a new official opinion," he said.
If a previously issued opinion sufficiently addresses the issue, or if the committee decides that the matter doesn't merit preparing a new opinion, the legal department will let the lawyer know. If the committee decides that the question does merit a new opinion, a committee member will take the responsibility for research and drafting.
"It's a collaborative process," said Broom. "Only rarely is a draft opinion approved the first time, because a lot of related issues will sometimes come up in the course of the committee's discussion. As long as we're on a particular issue, we want to draft a comprehensive answer."
Schuster, a solo practitioner before going on the bench, said she wasn't fully aware of the significance of the committee's work until she became the board liaison. "The quantity of ethics information that's available is a tremendous resource that ISBA members may not be aware of. Practitioners should take advantage of the committee's availability for their practices and for situations they may encounter in the future."