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A PRIMER ON ETHICS OPINIONS

Although many ethical dilemmas are completely unanticipated, such as those arising during depositions or hearings, there are also circumstances where attorneys have the luxury of giving forethought to whether their conduct may run afoul of the Rules Regulating The Florida Bar.  In the latter case, one useful resource is The Florida Bar’s Ethics Hotline.  Established in 1984, the Ethics Hotline permits attorneys to confer with Hotline attorneys on a confidential basis concerning their future conduct and request an opinion.  Attorneys may request either an oral or written opinion.  In either case, the Ethics Department will decline to issue an opinion if:

  • The lawyer is not a member in good standing of The Florida Bar;
  • The lawyer is inquiring about past conduct;
  • The inquiry involves the conduct of a lawyer other than the inquirer;
  • The inquirer asks a question of law; or
  • The inquiry is the subject of an ongoing disciplinary proceeding.

The Ethics Department may also decline to render an opinion if the inquiry is the subject of pending litigation or the inquirer poses a question for which there is no previous precedent or underlying bar policy on which to base an opinion.[1]

Lawyers may request oral staff opinions by calling 1-800-235-8619 or 1-850-561-5780. The Ethics Department keeps electronic records of calls.  The Ethics Department lawyer responding to an inquiry will note the pertinent facts and answer provided in the electronic record, and any identifying information so that the call record may be retrieved at a later time, if necessary.  An inquirer has the option to remain anonymous, but if the inquirer chooses to remain anonymous, there may not be any identifying information in the electronic record other than the facts the inquirer provided.

Lawyers also have the option of requesting a written staff opinion.  Generally speaking, written staff opinions may be completed in 3-5 weeks.  If a lawyer requests a written opinion, the lawyer must write the Bar with the facts and specific question for which an opinion is requested; written opinions are not provided based solely on telephonic requests.  Although written staff opinions are public court records, they are drafted in such a way as to not identify the inquiring lawyer.  Also, any related material that identifies the inquirer (i.e. the initial inquiry, cover letter from the Bar, etc.) remains confidential.  Staff opinions are generally not published; however, they may be published under some circumstances.  For instance, a staff opinion may be furnished to a subsequent lawyer if the subsequent lawyer asks the same or a similar question as the initial inquirer.  In that circumstance, staff typically notes that the opinion does not necessarily apply to anyone other than the original inquirer.

Bar members may appeal a written staff opinion, or decision not to render a written staff opinion, to the Professional Ethics Committee of The Florida Bar.  Oral staff opinions and decisions not to render oral staff opinions may not be appealed.  Decisions of the Professional Ethics Committee may be further appealed to The Florida Bar Board of Governors.  There is no mechanism for “appeal” of ethics opinions issued by the Professional Ethics Committee to the Florida Supreme Court.

Staff opinions and opinions of the Professional Ethics Committee are not binding on any court.  Under Florida’s Standards for Imposing Lawyer Sanctions, however, factors which may justify a reduction in the degree of discipline imposed in a disciplinary proceeding include “the absence of a dishonest or selfish motive.”  To the extent a respondent wishes to raise reliance on receipt of a staff opinion in a bar disciplinary proceeding, bar ethics counsel is authorized to release to bar disciplinary counsel, a grievance committee, referee, or the Board of Governors identifying information concerning the respondent that would otherwise be considered confidential under the Rules Regulating The Florida Bar.  Lawyers should always be aware that the Bar may, but is not, required to disclose information concerning an ethics opinion if the inquirer makes public statements after having received an opinion.

 

[1]   The procedures described in this post do not apply to review of lawyer advertisements.

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Lanse Scriven

"Our service should not be in expectation of acclaim. Our true reward is the service itself."

Lansing C. Scriven Excerpted from the Lawyer magazine, October 2005.

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