Throughout its history, the Indiana Supreme Court Disciplinary Commission has consistently played the role of enforcer but has rarely taken proactive steps to prevent attorney misconduct. That could change with the launch of a new ethical guidance program designed to help attorneys steer clear of potential ethical pitfalls.
The commission on April 9 announced a new ethics program that will offer informal guidance in the form of individual responses and formal guidance via public advisory opinions. The service is available exclusively to lawyers in good standing and draws on the expertise of the Disciplinary Commission’s staff and members to ensure attorneys are aware of their ethical duties, and to protect clients from possible harm.
“(It’s) preventative medicine,” commission executive director G. Michael Witte said. “We’re trying to improve our service of being able to prevent misconduct rather than just enforcing misconduct actions.”
Attorneys with specific questions about ethical dilemmas will receive guidance uniquely tailored to their problems through the commission’s informal review process. By filling out a guidance request form available at https://www.in.gov/judiciary/discipline/2414.htm and submitting it through the Indiana Courts Portal, attorneys can pose their questions to commission staff members, who will respond “promptly” by pointing attorneys to the applicable Rules of Professional Conduct. A “prompt” response could come in a matter of minutes, hours or possibly days, depending on the complexity of the question, Witte said.
According to a national survey in states with ethical guidance programs, Witte said the most commonly asked questions are “Do I have to report another lawyer’s misconduct?” and “How long should I keep a client’s file after I close out the case?”
Rather than providing explicit instructions on how to resolve issues, Witte’s staff will employ a “pointer system” that alerts attorneys to relevant conduct rules. From there, it’s up to the attorney to interpret those rules in the context of their situation, he said.
Indianapolis attorney Steven Badger, who chairs the Indiana State Bar Association’s Legal Ethics Committee, praised the informal guidance offering as a way for attorneys to learn if certain conduct could create an ethical violation. But if an attorney does violate the rules, commission chair Leanna Weissmann said seeking advice through the confidential Q&A process will not indemnify the attorney from potential discipline.
To that end, former commission attorney John Higgins said it’s likely a good idea for lawyers to consult with counsel before writing in to the ethical portal with possibly incriminating details about their conduct.
Tackling tough issues
Aside from addressing specific attorney questions, the Disciplinary Commission also will issue formal advisory opinions that take a position on ethical matters. The first advisory opinion was released on the same day the program was launched, with commission members warning attorneys that participation in online legal service providers such as Avvo or LegalZoom could expose them to ethical violations.
The idea of the advisory opinions is to address common ethical questions that have caused confusion among lawyers both in Indiana and nationwide, Weissmann said. Unlike the informal Q&A process, the advisory opinions will not touch on specific issues, but instead will address broad topics impacting the entirety of the legal profession, she said.
The topic of online legal service providers has long troubled practitioners across the country, making it a natural fit for the commission’s new advisory opinion program. Several other states including Florida, Ohio, New Jersey, New York, North Carolina, South Carolina and Utah have issued their own opinions regarding lawyer participation on such websites, with the topic of mandatory marketing fees serving as a frequent sticking point.
“With the proliferation of technology … this is a situation where it just felt like it was something that was coming up time and time again,” Weissmann said. “It was troubling for attorneys because it was not obvious if it was something that was permissible.”
In Indiana, the commission’s consensus was that participation with online legal referral service providers could lead to violations of Indiana Rules of Professional Conduct 1.2(c), 5.4(a), 7.2(b), 7.3(d) and 7.3(e). Looking specifically at the question of marketing fees, the commission found that the fees attorneys pay to legal service providers for inclusion in their databases could not be considered a “reasonable cost of advertising” under Rules 7.2 and 7.3.
Prior to Badger’s tenure as chair of the Ethics Committee, the committee undertook a study of online legal service providers to try to provide the same guidance the Disciplinary Commission recently offered. The committee’s efforts were ultimately unsuccessful, which is why Badger said the advisory opinion was needed and helpful.
“We applaud the Disciplinary Commission for giving lawyers guidance and weighing in on a tough issue,” he said.
The Ethics Committee is beginning its own process of weighing in on a tough issue by studying how Indiana’s Rules of Professional Conduct could be tweaked to better align with “the reality of modern practice,” Badger said. The work is new and not yet defined, but the idea is to look at any disconnects between the existing rules and recent changes in the practice of law, then discern how those disconnects can be remedied.
Until then, the commission’s new ethical guidance program will continue to strive to help attorneys understand how the current rules relate to their work and regulate their conduct. The eventual goal is to create a frequently asked questions page online where legal professionals could look for quick advice, Witte said.
The commission’s decision to offer these services serves a two-fold goal for the future of law practice in Indiana, Weissmann said — protecting the public from harm and becoming an active resource that lessens the likelihood of attorney misconduct.
“I don’t think any of us go to law school and think, ‘I can’t wait to commit misconduct,’” she said. “Most attorneys want to do the right thing, and this will make it easier to know what the right thing is.”•