Accusing the Accuser: Staff Gone Wild: Ethics of Using ABA Ethics Opinions

What to do when the accuser is accused?

Occasionally the staff of the Disciplinary Commission is accused of committing wrongdoing. Much like a prosecutor  accused of malfeasance, there needs to be a method of resolving such an event, and recently the Indiana Supreme Court addressed this problem.

In the artfully titled Order which the court called:  ORDER FORMALIZING POLICY AND SETTING PROCEDURE FOR THE INVESTIGATION AND PROSECUTION OF GRIEVANCES INVOLVING MEMBERS AND STAFF OF THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION AND ATTORNEYS SERVING AS HEARING OFFICERS IN ATTORNEY DISCIPLINE CASES, the court addressed the issue of the accuser getting accused.  How should it be handled, and what to make of the event.The informal policy needed to be made a formal policy, so grievants would know what to expect. Five pages of analysis and remedy that is in the ranks of the better writings of this Court (notwithstanding the gender bias of referring to the then current and future CJs as “he”).  Well worth your time reading if you have a concern about the impartiality of the staff of the Disciplinary Commission. There is a way to get a fair proceeding.

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Staff Gone Wild – Signing Everything

There will be an interesting ethics program at the 2013 Solo and Small Firm Conference on the Ethics For Law Firm Staff, presented by John Conlon and your blogger, Ted Waggoner.  It was not prompted by, but will address the issues raised in the third Chovanec Opinion.  Oops.  Lack of training and supervision of staff, bad documents, that a secretary signed with the lawyer’s name to were filed with the US Bankruptcy Court.  The court rejected the documents, and things got bad for the lawyer, again.

Those federal judges don’t take things like this lightly. The Supremes did not either when it got to them. Read the case, and meet with your staff.

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How Ethical is Using an Ethics Opinion of the ABA?

So the ABA, a not for profit professional association with nearly a million members, creates at considerable expense, a Center for Professional Responsibility, with staff, office space, and all the accoutrements of support for the profession.  It is a dues charging Center, which members of the ABA can, for a fee, join and get the benefits of the Center.  It publishes books on ethical issues, works on the ABA Model Rules of Professional Conduct, and produces the official ABA Ethics Opinions based on those Model Rules.

One of the country’s more prominent lawyers, Ernie Svenson, a recent speaker at the ISBA Solo & Small Firm Conference, provided a link on his website, (I hope it is a profit center to his firm) to an ABA opinion on metadata, and for his effort got a cease and desist letter.  He posts about it and gets a serious conversation going about why the ABA would expect to sell its ethics opinions.

Classmate Joe O’Connor, a state delegate to the ABA House replied:

As the ABA State Delegate, and as a person who like a number of our Indiana colleagues has spent considerable volunteer time working with other lawyers from around the country to keep the ABA vital and relevant to our profession and safeguarding the justice system, I wanted to respond briefly to a couple of posts on this list serve about ABA ethics opinions and resources.

 Since October 2010, the ABA has made its ethics opinions available to the public free of charge by posting them on the website of the ABA Center for Professional Responsibility.  The ABA policy on access to and use of ethics opinions is reasonable and allows individuals to link to ABA ethics opinions and to quote from them within the doctrine of fair use.  The ABA ethics opinions policy, which is titled “ABA Ethics Opinions: Access for All Lawyers,” can be found on abanow.org at the URL: 

 http://www.abanow.org/2010/10/american-bar-association-ethics-opinions/.  

 I believe this represents a well-reasoned policy to provide guidance to all members of the profession and the public but of course opinions can differ.

 Joe O’Connor

I agree that an ethics opinion has some extrinsic value, and if the user needs to use more than “fair use” as defined in the copyright laws, a commercial transaction, including a payment for the product should be made.  I disagree with many about the value of an ABA opinion, which is based on the Model Rules, and not on the rule as actually written and enforced by the various state supreme courts. It is not a government document.

The Indiana State Bar Association does not charge for its opinions, now. They are available on the website. Not well indexed, but if you have the time, the opinion is there.

Some argue that this is one more reason to not join the ABA, but there are plenty of reasons for that, from politics to cheapness or lack or professional self-esteem. A complaint that a product that a seller wants $20 (or whatever) for is not worth  $20 is not the same as the complaint that they should not be permitted to sell the product.

ABA ought to win, and delegates ought to value the product of the organization they represent.

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