For the Defense - Vol. 8, Issue 3 - 44

Ethics Corner: The American Bar
Association Has a Lot to Say
(and You Need to Pay Attention)
Ellen C. Brotman
A
t the beginning of my career, my practice " majored " in
criminal defense, with a " minor " in advising and representing
lawyers who were being investigated by the Disciplinary
Board of the Pennsylvania Supreme Court. Fast forward many years
later (many!) to today and almost all my cases include representing
attorneys, often criminal defense attorneys, who need ethics advice
or have had disciplinary complaints filed against them by clients,
judges, or other lawyers. Surprisingly, I have found that one of the
challenges of this shift in practice has been finding helpful authority
to rely on. As a federal criminal defense attorney, I could research
the federal reporters, sticking mostly to the Third Circuit and the
Eastern District of Pennsylvania. Now, for ethics research, while
case law is helpful, it can often be scarce on more esoteric ethical
quandaries. I turn to the Restatement of the Law Governing Lawyers,
the case research collection on the Disciplinary Board's website (also
available in Fastcase) and ethics opinions issued by bar associations:
the Philadelphia Bar Association, the Pennsylvania Bar Association,
and the American Bar Association (the " ABA " ).
Of these bar associations, the ABA is the most prolific. This year
alone, it has issued four Formal opinions, all with relevance to
criminal defense lawyers. These opinions interpret the ABA's Model
Rules of Professional Conduct, on which Pennsylvania's Rules are
based. However, there are differences between the two sets of Rules;
these differences can affect the applicability of the ABA's Opinion, as
is more fully discussed below.
44 For The Defense l Vol. 8, Issue 3
The ABA's Formal Opinions can be relied on as persuasive precedent
by the courts and by the Disciplinary Board. The Pennsylvania Rules
of Professional Conduct and their Comments may even be amended
to conform to these Opinions. With this in mind, we review the
Formal Opinions issued so far this year.
First, ABA Formal Ethics Opinion 504 was issued on March 1, 2023.
This opinion is relevant to lawyers who practice in multiple states
or have out-of-state clients. The practice pointer here is: when you
have a matter that reaches outside of Pennsylvania, determine
what other jurisdictions are implicated, get yourself a copy of that
jurisdiction's Rules of Professional Conduct and make sure you are
aware of them. Pay particular attention to the treatment of fees and
fee agreements, as well as the ability to limit your representation
to a discrete stage of the case. As Opinion 504 summarizes, " Model
Rule 8.5 provides that when a lawyer's conduct is in connection with
a matter pending before a tribunal, the lawyer must comply with
the ethics rules of the jurisdiction in which the tribunal sits, unless
otherwise provided. For all other conduct, including conduct in
anticipation of litigation not yet filed, a lawyer must comply with
the ethics rules of the jurisdiction in which the lawyer's conduct
occurs. However, if the predominant effect of the lawyer's conduct
is in a different jurisdiction, then the lawyer must comply with the
ethics rules of that jurisdiction. " PA Rule 8.5 is consistent with the
Model Rule here.
For the Defense - Vol. 8, Issue 3

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