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AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
INFORMATIONAL REPORT TO THE HOUSE OF DELEGATES
The Standing Committee on Ethics and Professional Responsibility fulfills its mandates by
developing model national ethics standards for lawyers and judges and drafting ethics opinions
interpreting and applying those standards. Between August 2014 and February 2015, the
Committee will conduct three telephone conference calls and two in-person meetings.
Since August 2014, the Standing Committee on Ethics and Professional Responsibility has
released three formal opinions:

Formal Opinion 469: Prosecutors and Debt Collection Companies (November 12, 2014)
which explains that a prosecutor who provides official letterhead of the prosecutor’s
office to a debt collection company for use by that company to create a letter purporting
to come from the prosecutor’s office that threatens prosecution, when no lawyer from the
prosecutor’s office reviews the case file to determine whether a crime has been
committed and prosecution is warranted or reviews the letter to ensure it complies with
the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).

Formal Opinion 468: Facilitating the Sale of a Law Practice (October 8, 2014) which
provides guidance on when a lawyer or law firm sells a law practice or an area of law
practice under Rule 1.17. It explains that the seller must cease to engage in the private
practice of law, or in the area of practice that has been sold, in the relevant jurisdiction or
geographic area. But the selling lawyer or law firm may assist the buyer or buyers in the
orderly transition of active client matters for a reasonable period after the closing of the
sale. Neither the selling lawyer or law firm nor the purchasing lawyer or law firm may
bill clients for time spent only on the transition of matters.

Formal Opinion 467: Managerial and Supervisory Obligations of Prosecutors Under
Rules 5.1 and 5.3 (September 8, 2014) which provides guidance on Model Rules 5.1 and
5.3’s requirement that lawyers with managerial authority and supervisory lawyers,
including prosecutors, make “reasonable efforts to ensure” that all lawyers and
nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial
authority must adopt reasonable policies and procedures to achieve these goals.
Prosecutors with direct supervisory authority must make reasonable efforts to ensure that
the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors
have both managerial and direct supervisory authority, they may, depending on the
circumstances, be required to fulfill both sets of obligations. The particular measures that
managerial and supervisory prosecutors must implement to comply with these rules will
depend on a variety of factors, including the size and structure of their offices.
All of the above are available on the American Bar Association’s website at
http://www.americanbar.org/groups/professional_responsibility.html. According to recent data,
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there are approximately 2000 visits per month to the ethics opinion page. The above-noted ethics
opinions have been downloaded more than 350 times.
The Committee is considering the following topics for possible future opinions: current
clients merging and creating “thrust-upon” conflicts, lawyers accepting referral fees when the
referral was made because of a conflict of interest, and how judges may support lawyer pro bono
efforts.
In October 2014, members produced one 90-minute webinar CLE program. The program
focused on ABA Formal Opinion 466, Lawyers Reviewing Jurors’ Internet Presence. Former
Committee member Don Lundberg presented and Ethics Counsel Dennis Rendleman moderated.
Survey responses completed by participants showed the program was well received. The
Committee is planning CLE offerings on Formal Opinion 467 in spring 2015.
The Ethics Committee continues to oversee ETHICSearch, the Center for Professional
Responsibility’s ethics research service, a premiere member service. ETHICSearch Director
Peter Geraghty and ETHICSearch lawyer Susan Michmerhuizen respond to an average of 83
telephone, written, and e-mail inquiries per month. Topics raised with ABA ETHICSearch
lawyers this reporting period included: “of counsel” relationships; lawyers who are partners in
more than one firm; a lawyer’s obligations when he/she is subpoenaed to produce information
about a client; judicial use of social media/internet; whether judges have an obligation to report
litigants/witnesses’ criminal conduct they learn of during the course of a proceeding; operating
law related services; returning client file materials; and accepting gift from clients or crime
victims at the conclusion of the representation or prosecution. Member comments about the
service demonstrate the value of this member service. Comments included:

“Your answer today, with attachments, makes me very glad I put my ABA membership,
with Center dues, in the mail this morning…. Great work, as always. Thanks so much.”

“Thank you for an amazingly fast and comprehensive response. Those materials will give
me fodder for at least six months' worth of columns. Writing monthly columns on
listserves since 1997 leaves me in a constant search for material. I'll be sure to credit the
ABA ETHICSearch. “

“Thank you so much for your very prompt and detailed reply to my ETHICSearch
question, especially for the list of resources available for further research. …[O]ne of the
citations that you provided happened to touch on another aspect of my case and was very
helpful to me. So, if it were not for your thoroughness, I would not have had this
valuable information. Thank you so much for your prompt assistance.”

“Wow--Thank you. You've provided me with a lot of very useful information--I'm
learning answers to questions I did not even know to ask--Very helpful. This is the first
time I submitted an inquiry, and I am impressed, and grateful.”
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Additionally, Geraghty and Michmerhuizen wrote monthly Eye on Ethics columns and an ethics
Tip of the Month for ABA publications. Finally, ETHICSearch Director Peter Geraghty
participated as a panelist for the CLE webinar titled Data Security for Lawyers: The Ethical
Obligations to Clients that took place on October 21, 2014.
Respectfully submitted,
John M. Barkett
Arthur D. Burger
Robert A. Creamer
Barbara S. Gillers
Amanda Jones
J. Charles Mokriski
Ellen A. Pansky
Jennifer A. Paradise
Hope Cahill Todd
Myles V. Lynk, Chair
February 2015
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