January 11, 2016
5 Reasons to Seek Independent Outside Ethics Counsel
Attorneys tend to view ethics compliance as something very personal, and firms correctly views ethics issues as an internal matter. Attorneys would not hesitate to engage outside counsel if a legal malpractice claim arose, but many do not yet have dedicated outside ethics counsel to advise as part of ongoing daily firm operations. Increasingly, there are compelling reasons for attorneys and firms to engage outside independent ethics counsel, as a confidential resource in the event that an ethical issue arises, to advise on ethics compliance systems, and to help prevent ethics problems.
- Internal firm deliberations about ethics issues may not be privileged. Some California state and federal courts have held that the scope of privilege is extremely limited for internal firm deliberations regarding ethics issues related to client representation. Other courts have upheld a privilege for these internal deliberations. This means that internal correspondence or analysis related to actual or potential conflicts with clients, even with the firm’s general counsel, may not be privileged. Consulting independent outside ethics counsel can help to preserve the privilege of these communications.
- Outside Ethics Counsel has an independent view. It is axiomatic that it is difficult to solve a problem when you are in the same mindset that created the problem. A clear perspective can be difficult to channel when you are inside a firm, because certain attorneys may have viewpoints about how issues should be resolved, based on their valid self-interests. The viewpoints of attorneys who happen to be powerful or influential in the firm tend to prevail, because of that power and influence, and not necessarily because of the merits of their position. Outside ethics counsel can present a more balanced, independent voice on complex and difficult ethical issues, without the advocacy or biases that internal reviews may have.
- Ethics Compliance Requires Specialized Knowledge. Keeping up with developments in any area of law is not easy, and the pace of change in legal ethics is accelerating because of the increasing pace of change in the practice of law itself. Even if your firm has a dedicated internal general counsel, it can be difficult for that partner to stay informed on the necessary legal ethics issues. And if that partner has an active law practice, it may be difficult to dedicate the time necessary to resolve these issues properly. Outside counsel experienced in analyzing and resolving complex legal ethics issues can significantly streamline the process, lighten the burden for attorneys, and ensure best practices based on specialized knowledge.
- Outside Counsel is a Confidential Resource for Firm Attorneys. Not every ethics dilemma can, or should, be discussed openly in a firm. There are many factors that may make it difficult or impossible for attorneys at the firm to report issues to management in a timely way, or that may prevent disclosure of relevant issues altogether. Yet early identification of ethical issues, and timely analysis and resolution of those issues, is critical in avoiding compounding the problem, or escalating its effects. Outside ethics counsel can be a confidential resource to firm attorneys, leading to earlier and more robust reporting of actual or potential ethical issues, and an earlier and more satisfying resolution of those issues.
- Outside Ethics Counsel can Help to Present the Unpopular Decisions. Ethics issues, especially those involving client conflicts and relationships between partners at the firm, are sensitive issues. By their very nature, they require difficult decisions, that may be alienating or unpopular among one or more partners at the firm. It is not always easy to do the correct thing, especially if it means turning down work or disappointing a client, and facing the internal pressures among the partners. In this context, outside ethics counsel can more easily present and sell unpopular decisions when necessary.