Ethics Corner Article

New Hampshire Bar News – January 21, 2015

Dear Ethics Committee: An unexpected situation has arisen with one of my clients on the scope of my representation. I am not certain what the Rules of Professional Conduct require me to do under the circumstances. I have heard that the New Hampshire Bar Association’s Ethics Committee responds to ethics inquiries by telephone when immediate help is needed. What can I expect if I call the Ethics Committee, as I have a hearing this afternoon and need guidance beforehand?

We certainly encourage you to call the NH Bar Association Ethics Committee Help Line, which is a service the committee provides to New Hampshire Bar members who seek help in resolving ethics questions on short notice.

The Help Line will refer your inquiry to a member of the committee who will discuss the nature of your ethical dilemma and provide general guidance on the ethics rules implicated by your proposed conduct. Keep in mind that a committee member may not be able to get back to you before your hearing, though. Unlike the American Bar Association and many other state bar associations, the NH Bar Association does not have full-time legal staff to field ethics inquiries. Instead, practicing attorneys who volunteer to serve on the ethics committee respond to referred Help Line inquiries as quickly as possible.

When you call the Help Line, the committee’s staff liaison screens the call to determine whether your issue can be addressed by the ethics committee, whether the issue presents a conflict for any particular committee member, and whether it is possible to provide feedback within the requested timeframe.

All Help Line inquiries are confidential. Although staff makes every effort to get in touch with a committee member who is available to call back within the requested timeframe, it is important to keep in mind that this is not always possible and that the attorney-volunteers need a reasonable opportunity to respond.

If your inquiry is so urgent that you cannot wait for a committee member to call back through the Help Line, there are other resources available. While your first step should be reviewing the Rules of Professional Conduct and associated comments, following up with a trusted colleague may provide you with unbiased and frank feedback based on an objective assessment of the situation. It is often helpful to discuss ethics dilemmas with colleagues, even if they are not members of the ethics committee, as they often provide a perspective that you may not have considered.

The American Bar Association (ABA) also offers general assistance in understanding and resolving ethics questions through the ABA ETHICSearch service. If you are an ABA member or non-member subscriber, you can call the service at 800-285-2221 or by email. For more information, visit www.americanbar.org and search for “ethics.”

If your situation is complex and requires more understanding of the factual background than can be provided with a phone call or email, or if the situation is serious enough to warrant a more detailed legal review, you should consider retaining your own legal counsel to advise you on the proper course of conduct. Discussions with counsel are protected by the attorney-client privilege, which may be an important consideration.

There is an important distinction between the Help Line and advice provided by your own legal counsel. The informal consultation provided through the Help Line is intended to help you to make an independent determination on your own prospective conduct. The guidance does not constitute an ethics committee opinion and is not binding. Individual committee members provide their own assessment of the underlying ethics implications of attorneys’ proposed conduct. Committee members generally use their own experience and knowledge about the ethics rules, in the context of the underlying law, to point attorneys in the right direction and away from proposed conduct that would risk violating the Rules of Professional Conduct.

Committee members often try to provide additional insight on strategies that could be useful in avoiding potentially problematic conduct. Although all discussions with committee members are strictly confidential, no attorney-client relationship or privilege is established. Guidance provided by committee members cannot be used to defend against alleged ethics violations in any disciplinary, administrative or judicial proceedings, although it can be used to mitigate sanctions.

In addition, because the ethics committee does not provide guidance in the context of litigated disputes, pending disciplinary actions or past conduct, it is important to separate your own proposed conduct from conduct that may be in dispute in the context of your pending litigation. If your inquiry involves only your own proposed conduct, with respect to your relationship with your client, and does not implicate the jurisdiction of the court in your pending case, the committee would typically assist. If not, the Committee would defer to the authority of the court in the pending case.

The committee also cannot address your past conduct or conduct of other attorneys. The ethics committee does not become involved in attorney discipline proceedings, which are governed by the Attorney Discipline Office, Professional Conduct Committee and Supreme Court.

The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing Robin E. Knippers. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.