“Now now, your Honor—that’s the Plaintiff!”
This is as good an example as you’ll find of why professionals can’t and shouldn’t rely solely on the ethics rules-making bodies to solve their ethical dilemmas when they arise.
American Bar Association Formal Opinion 488 purports to tackle the persistent question of when judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned because of relationships with parties. After seven pages and many footnotes, we are enlightened that “ a judge must disqualify himself or herself when the judge has a romantic relationship with a lawyer or party in the proceeding, or desires or is pursuing such a relationship.”
Do you know what legal ethics opinions are? Many lawyers don’t know, or barely pay attention to them, but the opinions are important. They are written when bar associations have to decide how to handle the gray areas of professional ethics, and believe me, there are more gray areas in legal ethics than the profession likes to admit. Some jurisdictions churn out lots of important and useful legal ethics opinions all year long; others barely bother with them. (Idaho simply stopped issuing such opinions decades ago.) Still, the LEOs, as they are called, are essential when one of the many legal ethics issues crop up that a jurisdiction’s rules themselves don’t cover.
Although bar associations do a terrible job making their legal ethics opinions’ availability known to the general public, LEOs have invaluable information to convey about how lawyers are ethically obligated to serve their clients. They are also essential if people like me are going to be able to remind Maryland’s lawyers about their ethical duties as part of continuing legal education seminars and expert opinions.
So why is it that Maryland, alone among the 51 U.S. jurisdictions, refuses to allow the public access to their legal ethics opinions? All right, neither does Arkansas, but nobody can read in ArkansasKIDDING!!! I’M KIDDING!
In order to find out what the Bar Association has decided regarding specific legal ethics conundrums, or whether the state has any position at all, one has to be a dues-paying member of the Maryland Bar. Never mind that Maryland lawyers, who, like most lawyers, often are subject to the ethics rules of other jurisdictions, can access neighboring bar association LEO’s with a couple of clicks on their computers. Never mind fairness or reciprocity.
Here’s how the question “Why do we hide our ethics opinions?” was answered by one Maryland lawyer online:
What a mess.
Missouri lawyer Joel Eisenstein saw two documents illicitly obtained by his client: a payroll document for the client’s wife and a list of direct examination questions prepared by his client’s wife’s attorney for an upcoming divorce trial.
This kind of stuff, proprietary material that is handed over to a lawyer by someone, including a client, who received it under dubious circumstances is ethically radioactive. As the DC bar wrote in Ethics Opinion 318…
When counsel in an adversary proceeding receives a privileged document from a client or other person that may have been stolen or taken without authorization from an opposing party, Rule 1.15(b) requires the receiving counsel to refrain from reviewing and using the document if: 1) its privileged status is readily apparent on its face; 2) receiving counsel knows that the document came from someone who was not authorized to disclose it; and 3) receiving counsel does not have a reasonable basis to conclude that the opposing party waived the attorney-client privilege with respect to such document. Receiving counsel may violate the provisions of Rule 8.4(c) by reviewing and using the document in an adversary proceeding under such circumstances and should either return the document to opposing counsel or make inquiry of opposing counsel about its status prior to determining what course of action to take. Continue reading