You Don’t Always Get What You Pay For, But Free Advice Can Be Costly.

In Tennessee, we have a version of RPC 1.6(b)(4) patterned after the ABA Model Rule that permits a lawyer to disclose confidential client information for the purpose of getting advice about how to comply with his/her ethical obligations.  The last sentence of Comment [9] to that rule stresses that this disclosure can only be made, however, if the lawyer makes sure it will be protected by attorney-client privilege.  In other words, the lawyer to whom you go to seek counsel needs to be your lawyer.  Obviously, as with any other lawyer-client relationship, if you hire a lawyer to counsel you about what to do and you don’t like the advice provided, you can choose to go a different direction and, in almost every situation, because of the existence of the attorney-client privilege, your lawyer will never be required to tell anyone about the advice you rejected.

In Tennessee, our disciplinary counsel are permitted to provide informal ethics advice to a lawyer about that lawyer’s own conduct at no charge.  See Tenn. Sup. Ct. R. 9, Section 5.4.  In recent years, the primary means that this has been accomplished is through having a specially-designated Ethics Officer to whom these inquiries can be directed.  These inquiries occasionally result in the issuance of written Informal Advisory Opinions maintained by the Board of Professional Responsibility and that historically could be requested by other lawyers to provide some insight into issues on which there might not be other clear authority floating around.

Taking advantage of this free function can be tricky for several reasons though: (1) there is no separation of church and state (so to speak) such that there has never been a guarantee that the information provided to the disciplinary counsel from whom advice is sought won’t end up triggering a disciplinary investigation; (2) if you hear an answer you don’t like, then you are likely stuck with it because if it comes to light you rejected the guidance and plowed forward you can get hammered; (3) you aren’t establishing an attorney-client relationship with disciplinary counsel, so you may not be able to take advantage of RPC 1.6(b)(4) to disclose necessary details about your situation; and (4) the section authorizing this assistance specifically says that the advice isn’t binding on the BPR and offers no protection to the lawyer making request.  Section 5.4(c) currently reads:

An advisory ethics opinion may be issued by Disciplinary Counsel orally when there is readily available precedent.  The advisory opinion shall not be binding on the Board and shall offer no security for the person requesting it.

So, why in the world would any lawyer ever make use of this function to get advice?  Well, it is free.  And free is a really good, and very hard to compete with, price point when it comes to legal ethics advice.

Over the years, when lawyers have asked me about contacting the BPR for free advice, I’ve consistently said that if they really couldn’t afford to pay for a private lawyer, this was a good service to pursue but, again always stressing that you would need to be fully prepared to comply with the answer you get, no matter what it is and regardless of whether it is right or wrong.

Tennessee lawyers do make use of this service.  According to the BPR, disciplinary counsel had received and responded to more than 2,200 such inquiries during the 2014 fiscal year.  Nevertheless, out of an expressed concern that the rule does not provide sufficient confidentiality protection and that lawyers may be “chilled” from being willing to seek out this guidance in the future, the BPR filed a petition back in June asking that the language of Rule 9, Section 5.4(c) be changed as follows:

An advisory ethics opinion may be issued by Disciplinary Counsel orally when there is readily available precedent.  The advisory opinion shall not be binding on the Board and shall offer no security to the person requesting it.  All requests for advisory opinions, oral and written, and the Board’s Responses shall be confidential and privileged and shall not be public records or open for public inspection, except as otherwise provided in Section 32.

The Tennessee Bar Association filed a comment about the proposal offering some further revisions that would provide the kind of protections it sounded like the BPR was interested in providing and suggesting that it would be a laudatory state of affairs if these inquiries were being addressed by an Ethics Officer who would be separate from the disciplinary and investigative process.  You can read the full TBA comment here, but the proposed alternate change offered up by the TBA for Section 5.4(c) was:

An advisory ethics opinion may be issued by Disciplinary Counsel orally when there is readily available precedent.  The advisory opinion shall not be binding on the Board and shall offer no security to the person requesting it.  A lawyer shall have a privilege as to any request for advisory opinion, oral or written, and the lawyer’s request and the Board’s response shall be confidential and shall not be public records or open for public inspection.  Based on this privilege, no such requests or responses shall be shared with disciplinary counsel for the Board, no such requests or responses shall be shared with disciplinary counsel for the Board or publicly-disclosed absent the lawyer’s permission.  No attorney-client relationship shall be created by a lawyer making or receiving a response under this subsection.

Yesterday, the BPR filed a reply to the TBA comment that takes issue with trying to limit the provision of this advice to just the Ethics Officer and that certainly does not appear to clearly prohibit the exchange of information from being shared with other disciplinary counsel to be used against the lawyer in a disciplinary proceeding.  The BPR’s reply offers a compromise 5.4(c) that if adopted would simply say:

An advisory ethics opinion may be issued by Disciplinary Counsel when there is readily available precedent.  The advisory opinion shall not be binding on the Board and shall offer no security to the person requesting it.  All requests for advisory opinions, oral and written, and the Board’s Responses shall be confidential and shall not be public records or open for public inspection, except as otherwise provided in Section 32 and subject to waiver by the requesting attorney.

We’ll have to wait and see what the Tennessee Supreme Court decides to do, but it looks like, if the BPR gets its way, Tennessee lawyers that opt for free advice from disciplinary counsel will be getting insight that gives them a level of protection worth exactly what they paid for it.

(P.S., if you are curious you can read the language of Section 32 here (you have to scroll almost all the way to the bottom of the link to get to that section) and maybe you will have a better understanding than I about how that section would ever kick in or work with the proposed Section 5.4(c).)