Lawyers ask for ethics guidance
G. Michael Witte, Executive Director | Disciplinary Commission
In April 2018, the Disciplinary Commission began providing Indiana lawyers informal ethics guidance and formal advisory opinions.
Informal guidance allows a lawyer to confidentially submit an ethical conduct question. The process is known as a pointer system: the Commission points the lawyer to applicable rules, official comments, caselaw, and legal articles on the topic. The Commission does not directly answer the question posed. The lawyer gains insight to the Commission’s analysis and legal sources should the facts evolve to an investigation.
The process to request guidance is solely online and is accessed through the Indiana Courts Portal. Online instructions provide the bounds for guidance submissions. The inquirer submits the request on an electronic document and uploads it for transmission to the Commission.
The following modified sample of an informal inquiry response provides a glimpse into how the pointer system works:
You have recognized a Rule 4.2 situation. Please see Comment (4) to the rule regarding communications between the parties without their lawyers’ involvement. Also, see Comment (6) regarding court authorization of a by-pass communication.
This example accomplishes the following:
- Points the lawyer to legal authority.
- Hints to where the case may lie after Commission analysis.
- Points to possible relief from ethical restrictions.
There were 106 informal guidance requests submitted to the Commission in the first year.
The Professional Conduct Rules most commonly referenced in those inquiries were:
- Rule 1.7 | 17 inquiries: Current Client Conflict of Interest
- Rule 1.6 | 15 inquiries: Client Confidentiality
- Rule 1.9 | 13 inquiries: Former Client Conflict of Interest and Confidentiality
Overall, 26 Rules of Professional Conduct were referenced in the first year of rendering informal guidance. Article 5 of the Rules (Law Firms and Associations) consists of seven rules. Combined, they accounted for 14 references by the Commission.
The Commission staff has taken on this task with enthusiasm and an enhanced purpose. It looks forward to continuing to provide this benefit of prevention to all lawyers who are in good standing.
The first formal written advisory opinions can be accessed online:
Lawyer participation in online legal referral services on.in.gov/dcopn118
Lawyer affiliation with legal services companies and out-of-state law firms on.in.gov/dcopn218