December 2009 - Professionalism and Ethics Committee
by Scott B. Garner
The Orange County Bar Association's Professionalism and Ethics Committee is a group of 15 or so ethics geeks who meet once a month at 7:30 a.m. to discuss current ethics and professional responsibility issues confronted in daily practice. That said, it provides a very valuable service to the lawyers in Orange County, as well as to the Orange County Bar Association ("OCBA").
The Committee's mission is "to support the members of the OCBA in the professional and ethical practice of law for the benefit of not only the OCBA, but also the community it serves." The Committee does this in a multitude of ways.
One way is by issuing non-binding ethics opinions (which can be found on the OCBA web site) addressing issues on which existing opinions, rules, and case law may be insufficiently clear or even non-existent. These opinions then may find their way into the body of opinions and other authority cited in State Bar or other bar association ethics opinions or even in court decisions. And, lest there be any preconceived notion that ethics opinions are dry and without excitement, members are encouraged to check out, for example, OCBA Ethics Opinion 2003-02 entitled "Attorney-Client Sexual Relations."
Throughout each year, the Committee receives inquiries from members on various ethics issues. Although the Committee endeavors to respond to each of these inquiries, its responses may come in various forms. Where the Committee deems it appropriate, the response may take the form of a formal published opinion. But don't worry - the source of the inquiry remains confidential. See, e.g., OCBA Ethics Opinion 2003-02. In other situations, where the Committee does not feel that the inquiry warrants a formal opinion - either because there already is significant authority on the issue, the issue would not be of concern to enough members, or for any other reason - the Committee will respond separately to the inquiry, usually by letter. The Committee encourages members to utilize this service; however, one word of caution - if you need a quick response to an ethics inquiry, better to contact the State Bar ethics hotline at 1.800.2ETHICS or hit the library. The Committee acts deliberately and through consensus, which means quick, off-the-cuff answers are not to be expected.
Another way in which the Committee serves the Orange County legal community is through its contribution to the "Ethically Speaking" column in this magazine. Committee members are required to contribute at least one writing (many do more than one) during the year, and often that one writing is an "Ethically Speaking" column. Topics are varied, although always somehow relating to legal ethics.
Yet another way the Committee lets the OCBA be heard on ethics issues affecting its members is by submitting comments to the State Bar on various proposed rules and opinions. For example, the State Bar's Committee on Professional Responsibility and Conduct ("COPRAC") periodically submits for public comment ethics opinions of its own. Many of the larger county bar associations participate in this public comment procedure, and over the last few years the OCBA has become one of the more active participants - regularly submitting comments prepared by the Professionalism and Ethics Committee. Two of the Committee's members - co-chair Shawn Harpen and immediate past co-chair Carole Buckner - serve as current members of COPRAC. Indeed, Ms. Buckner is the Chair of COPRAC for the 2009/2010 term and Ms. Harpen is the Vice Chair.
In addition, the State Bar is in the process of revising California's Rules of Professional Conduct to track more closely to the ABA Model Rules. As with State Bar ethics opinions, each proposed rule is put out for public comment. And, as with State Bar ethics opinions, the Professionalism and Ethics Committee is right at the forefront in providing its comments and analysis.
Finally, to ensure that the Committee's views represent the views of the OCBA's full membership as much as possible, the OCBA's President and the Committee both strive to assemble members who not only have an interest in and knowledge of ethics issues, but also who represent varied experiences and perspectives. Currently, the Committee includes members from large firms, small firms, and sole practices; plaintiffs' lawyers and defense lawyers; family lawyers, business litigators, and transactional lawyers; and criminal lawyers with experience in both prosecution and defense. And, of course, the Committee is always looking for a few more good practitioners willing and able to role up their sleeves and make a difference.