Ethics Committee: Notable 83-Year History of Providing Guidance, Practical Advice to County Bar Members
500+ formal opinions published as committee looks to Year 2000

LACBA Update, December 1999

By H. Jay Ford III, chair, Professional Responsibility & Ethics Committee. Ford is a shareholder of Tyre Kamins Katz & Granof, a law corporation. The views expressed are his own.

Since 1917, the County Bar’s Professional Responsibility & Ethics Committee has been publishing formal opinions in response to members’ inquiries. During its nearly 83-year history, the committee has published 501 opinions.

This year the committee continues its groundbreaking tradition by addressing ethical issues arising out of the limited representation of pro per litigants, ghost-drafting of pleadings, payment of referral fees, and indirect communications with parties represented by counsel.

The committee consists of County Bar members, many of whom have dedicated their careers to the study of ethics and professional conduct. The leading ethics and attorney malpractice experts in the state have been members of the committee for many years. The committee membership is large and is representative of large and small firms, solo practitioners, and government attorneys.

The formal opinions published by the committee are advisory. They are not binding on any court or the State Bar. [Rule 1-100, Rules of Prof. Conduct.]

Rule 1-100, however, notes "opinions of ethics committees in California should be consulted by members for guidance on proper professional conduct."

Indeed, courts will often look to formal opinions when faced with new ethical issues.

For example, in the late 70s through the early 80s, the County Bar’s Ethics Committee "provided persuasive guidance on the issue of the scope of permissible ex parte contacts with current and former corporate employees." [Continental Insurance Corp. v. Superior Court (1995) 32 Cal.App.4th 94, 114.]

Earlier this year, in State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, the court looked to an ABA formal ethics opinion to adopt a new rule in California governing attorneys’ ethical duties when privileged documents are inadvertently received.

And most recently in People ex. re. Department of Corporations v. SpeeDee Oil Change Service (1999) 20 Cal.4th 1135, the California Supreme Court found the formal opinions of the ABA, State Bar and San Francisco ethics committees to be persuasive in resolving whether a conflict with an "of counsel" member of a firm can lead to the disqualification of the entire firm.

While bar association ethics committees’ opinions may not be binding, it is clear that courts will certainly consider them and, in general, are inclined to follow them when no contrary authority exists.

For the practitioner, formal opinions provide needed and reliable guidance on ethical issues the Legislature and courts have not yet addressed.

The committee’s ethics opinions can be obtained through the County Bar’s Web site.

The committee welcomes new inquiries from County Bar members. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer.

If you have an ethical question that you would like the committee to consider, mail your written inquiry to: Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020 or email your inquiry marked “Confidential” to msd@lacba.org.