Kansas Bar Journal
Vol. 78 No. 1.
Thinking Ethics: ABA Provides New Guidance on Use of Ethics Counsel
Vol. 78 No. 1 January 2009Thinking Ethics: ABA Provides New Guidance on Use of Ethics CounselBy Mark Hinderks Just as the proverbial cobbler's children often need new shoes, a lawyer occasionally needs legal advice, especially when confronted with volatile professional responsibility questions that have the potential to create conflicts (of both the technical and literal variety) between the lawyer and either a client or the lawyer's firm or employer. KRPC 5.1 also imposes a duty upon lawyers in a firm to make reasonable efforts to ensure that all lawyers in the firm conform to the rules of professional responsibility. In recognition of this need and mandate, - and mindful of the courthouse wisdom that a lawyer who represents himself or herself has a fool for a client - an increasing number of firms and law departments have designated internal ethics counsel (in law firms, often designated as the firm's general counsel) to serve as lawyer(s) for the organization to respond to professional responsibility matters. In ABA Formal Ethics Opinion 08-453 (Oct. 17, 2008) (Opinion), the ABA's Standing Committee on Ethics and Professional Responsibility provides guidance on several aspects of this service. This column will summarize key points of the Opinion.
The Opinion specifically addresses in-house consulting on ethical issues within law firms. But most of its guidance also appears to be applicable to similar consulting that occurs within corporate or governmental law departments. Some aspects of the Opinion concern conflicts of interest between a law firm and its client, however, and these may not be applicable in particular circumstances to corporate or governmental law departments whose single-client focus may obviate conflicts.
Disclosure of client confidences. Usually, in order to obtain meaningful advice, the lawyer must disclose to ethics counsel the facts relating to a client representation that give rise to the issue. KRPC 1.6 prohibits disclosure of "information relating to representation of a client" without client consent. The Opinion notes that Comment 5 to Rule 1.6 indicates that lawyers in the same firm may share client confidences, unless instructed by the client to limit...