Indiana Law Review


Indiana Law Review
Volume 26 1992 Number 1

ARTICLES

The Ethics Opinions of the Bar: A Valuable Contribution
or an Exercise in Futility?

Jorge L. Carro*

Introduction

The practice of law in America has been regulated since early colonial
days. Both legislatures and courts, from without, and the legal profession,

from within, have adopted regulations governing the practice of law.

The more visible regulations are in the form of statutes, court decisions,
court rules, and codes of professional ethics. Although regulations have

provided guidance to the practicing bar for many years, a substantial
number of existing norms are not well known to the general public.
Included in the latter group are the ethics opinions issued by bar as-

sociations.

The purpose of this Article is to measure the impact of ethics opinions
on courts that decide matters relating to the legal profession. In this

Article, the history of the regulation of the practice of law as a profession

will be surveyed, the evolution of the ethics opinions of the bar asso-

ciations will be traced, and a quantitative, as well as a qualitative,

analysis of their impact upon the courts will be attempted.

* Professor of Law, University of Cincinnati College of Law. A.B., 1945, Havana

Institute; J.D., 1950, University of Havana; M.L.S., 1969, Emporia State University. This

Article emanated from a research project developed by Edy Carro Schlotman, J.D., University

of Cincinnati College of Law, member of the Ohio Bar.

The author thanks the administration of University of Cincinnati College of Law for
its financial support and Barbara R. Szucsik, University of Cincinnati College of Law, class

of 1993 for her invaluable editorial assistance.



INDIANA LAW REVIEW [Vol. 26:1

I. The Regulation of the Legal Profession: A Historical
Perspective

A. Early Attempts

There were few lawyers in the early colonial period. Those who
practiced were not only impoverished, but subjected to severely restrictive

legislation, almost leading to their complete banishment. 1 These circum-

stances began to improve at the end of the seventeenth century, when
in Virginia, Massachusetts, New York, and Maryland, an organized bar
emerged.2 The bar produced an array of better educated, true profes-

sionals who not only maintained a regular and extensive practice but
who also established legal fees as their regular course of income. 3 The
evolution of the legal profession did not preclude the continual prom-

ulgation of rules to regulate practitioners — particularly in the area of
fees.

4 Nevertheless, at the time of the American Revolution, no uniformity

existed for the enactment of rules, even in an area as important as the

requirements for admission to the bar. For example, in Massachusetts,

each county court admitted attorneys for all the courts in its jurisdiction.

In Rhode Island, Delaware, and Connecticut, local courts handled bar
admissions, although admission to one bar allowed attorneys to practice

in all. 5 At times, regulations went beyond matters related to the practice

of law itself. For example, in New York, each attorney was required
to provide satisfactory proof that he had conducted himself as a good

and zealous friend to the American cause.6

Between 1765 and 1840, the legal profession attained an unprece-

dented prominence in the leadership of the country. As one commentator
expressed: "It was a time when lawyers spoke and acted with that
conscious authority which is characteristic of truly creative founders and

promoters of public institutions and policies."7 However, it was only

after 1875 that practitioners began to develop the concept of the legal

1. In Massachusetts, by a statute adopted in 1641, attorneys were allowed to plead

causes other than their own, but all fees were disallowed. In Virginia, not only were all

attorneys virtually eliminated in 1645, but heavy fines were imposed upon those remaining in

practice in 1657. Francis R. Auman, The Changing American Legal System 19-26 (1940).
2. Id.

3. Alan F. Day, Lawyers in Colonial Maryland, 1660-1715, 17 Am. J. Legal Hist.

145-49 (1973).

4. Throughout 1678 and 1679, authorities in Charles County, Maryland ordered

attorneys to collect 100 pounds of tobacco per case. This ruling remained in effect until 1690

when lawyers were permitted to charge up to 300 pounds. Id. at 163.

5. Lawrence M. Friedman, A History of American Law 276 (1973).
6. 2 Anton H. Chroust, The Rise of the Legal Profession in America 7 (1965).
7. Id. at 285.



1992] ETHICS OPINIONS OF THE BAR 3

profession as a
*

'branch of the administration of justice" instead of "a

mere money-making trade." 8

B. The Organized Bar

Even after the American Revolution, the organized bar, as we think
of it today, with internal organization and cohesion, was nonexistent.

It was only in the late nineteenth century that local bar associations

began to emerge.9 In 1870, a number of prominent lawyers founded the

Association of the Bar of the City of New York. In 1874, the Chicago
Bar Association was created. Immediately thereafter, eight city and state

bar associations were formed, all having as one of their main goals the

improvement of the conditions of the bar. 10 A proliferation of bar
organizations followed. By 1890, there were twenty state or territorial

bar associations. By 1916, forty-eight associations existed. In 1925, every

state and territory had associations of lawyers, although their formats

varied. 11 The most important event in the history of the bar occurred

in 1878, when the American Bar Association (ABA) was created in

Saratoga, New York. The ABA's goals included the resurgence of the
professional spirit of the bar combined with a sense of public duty, the

improvement of legal education, formulation of standards for admission

to the bar, and the achievement of legal reform. 12

At the celebration of its centennial in 1978, the ABA counted a
membership of 235,000 lawyers. Today, the ABA has a membership of
360,000. The Association continues its devotion to service to the pro-

fession and to the improvement of the administration of justice, but

maintains as its primary goals the pursuit of professional integrity and

professional development. 13

II. The Ethical Norms of the Legal Profession

A. The Early Treatises

From the outset, the legal profession expressed great concern for
the ethical behavior of its members, seeking guidance for ethical principles

from organized bodies. Two works in particular had a significant impact

8. Henry S. Drinker, Legal Ethics 20 (1953).
9. James W. Hurst, The Growth of American Law: The Law Makers 285-86

(1950).

10. Id. at 286.

11. Id. at 287.

12. Id.

13. ABA Centennial: A Century of Service 5 (1979).



4 INDIANA LAW REVIEW [Vol. 26:1

on the early development of professional ethical principles: David Hoff-

man's Fifty Resolutions in Regard to Professional Deportment (1822),
and George Sharswood's A Compend of Lectures on the Aims and
Duties of the Profession of the Law (1854). Both Hoffman and Shars-
wood were nineteenth century law teachers. 14

Hoffman's work was reprinted in his Course of Legal Study in 1836.

This work was a collection of moral maxims which established very high
standards for the practicing lawyer, for example:

XI. If, after duly examining a case, I am persuaded that my
client's claim or defense (as the case may be), cannot, or rather
ought not to be sustained, I will promptly advise him to abandon

it. To press it further in such a case, with the hope of gleaning
some advantage by an extorted compromise, would be lending
myself to a dishonorable use of legal means in order to gain a

portion of that, the whole of which I have reason to believe

would be denied to him both by law and justice. 15

In Maxim XII, a pledge was made not to plead the Statute of
Limitations. 16 Sharswood followed the same format, although his moral

maxims were presented in the form of essays. Sharswood later developed
an original contribution in his treatise Legal Ethics (1884).

For many years, these two treatises constituted the creed of the legal
profession. Other less significant works on ethics which coexisted with

or supplemented these two included Timothy Walker's A Course of Legal
Study (1837), George W. Warvelle's Essays in Legal Ethics (1902), and
Gleason L. Archer's Ethical Obligations of the Lawyer (1910).

B. The Codes of Ethics

1. The Alabama Code of Ethics.—As the legal profession attained
maturity and the practice of law became more complex, the need arose

for ethical norms of a more definite character than the merely encouraging

works of Sharswood and Hoffman. In 1887, the state of Alabama
promulgated its Alabama Code of Ethics based upon the aforementioned
treatises.

17 The Alabama Code was composed of: (a) a preamble; (b) a
quotation from Sharswood titled "High Moral Principle Only Safe

Guide;" (c) "A Summary of the Duties of Attorneys," which constituted
an oath of the profession; and (d) a relation of the "Duty of Attorneys
to Courts and Judicial Officers." This last section comprised a series

14. Robert H. Aronson et al., Professional Responsibility 29 (1985).

15. Drinker, supra note 8, at 339-40.

16. Id. at 340.

17. Id. at 352-63.



1992] ETHICS OPINIONS OF THE BAR 5

of fifty-six statements establishing the basic duties of lawyers in matters

ranging from criticism of judges and trial conduct to the preservation

of clients' confidences and contingent fees. The quotation from Shars-

wood starts with the following sentence: "There is, perhaps, no profession
after that of the sacred ministry, in which a high-toned morality is more
imperatively necessary than that of the law." 18

2. The ABA Canons of Professional Ethics.—In 1908, inspired by
the Alabama Code, the American Bar Association adopted the original
Canons of Professional Ethics, which initially included thirty-two canons,

but which was subsequently amended and expanded to forty-seven. 19 The
guidelines imparted by the committee studying the adoption of the code

suggested that: "good behavior should not be a vague, meaningless or
shadowy term devoid of practical application save in flagrant cases."20

Based on this guideline, the ethical standards were better defined and
measured, and recommendations were made that "a lawyer failing to
conform thereto should not be permitted to practice or to retain mem-
bership in professional organizations."21

The Canons were numbered, each beginning with a one-sentence title

followed by a lengthy explanation. For example:

When Counsel for an Indigent Prisoner—A lawyer assigned as
counsel for an indigent prisoner ought not to ask to be excused

for any trivial reason, and should always exert his best efforts

in his behalf.22

Among other provisions, the purchase of interests in the subject matter
of litigation which the attorney conducted was prohibited, the furnishing

of information to newspapers by an attorney on pending or anticipated

litigation was condemned, and the solicitation of professional employment

by circular, advertisement or personal communication or interview not

warranted by personal relations was banned. The Canons also contained

a series of rules of candor and fairness to be followed when appearing
before the court and when dealing with other attorneys.23 Provisions
also addressed the division of fees, contingent fees, suing a client for

a fee, as well as prohibitions on attorneys assisting in the unauthorized

practice of law. 24 The Canons were in effect for more than sixty years

18. Id. at 352.

19. Thomas D. Morgan & Ronald D. Rotonda, 1991 Selected Standards on
Professional Responsibility 438-450 (1991).

20. Aronson, supra note 14, at 29-30.

21. Id. at 30.

22. Morgan & Rotonda, supra note 19, at 439.
23. Id. at 443.

24. Id. at 441-42.



6 INDIANA LAW REVIEW [Vol. 26:1

until they were superseded by a new code. However, its provisions are
still occasionally cited in court decisions and in bar opinions. The most
important contribution emanating from this code was that it allowed

the courts and the bar to discipline attorneys for a violation of ethical

norms.

3. The Canons of Judicial Ethics—On July 9, 1924, the ABA
adopted the Canons of Judicial Ethics.25 The Canons of Judicial Ethics
were similar to those adopted for the practicing bar, but their goal was

the formulation of a series of principles for judicial behavior. The ABA
later recognized that "the primary function of the judges is to pass on

their own conduct.' ' In 1945, the Ethics Committee recommended to
the Board of Governors that they authorize the appointment of an

Advisory Committee of five judges to whom the Committee might turn
for advice in cases involving judicial conduct.26

Topics the Canons addressed included promptness, behavior in court,
treatment of witnesses, the avoidance of impropriety, and abuse of

discretion. The Canons condemned the acceptance of inconsistent ob-
ligations. Of special interest were the provisions in Canon 23 that pointed
to the judiciary's exceptional opportunity and duty to promote legis-

lation.
27 In 1970, the Canons became the Code of Judicial Conduct. In

1984, a paragraph was added to the comment of Canon 2 condemning
judges' membership in institutions that practice "invidious discrimina-

tion." Recently, in August of 1990, a new Code was adopted by the
House of Delegates of the ABA.28

4. The Code of Professional Responsibility.—In 1964, the ABA
appointed a special committee charged with the responsibility of eval-

uating the standards of the profession because: (a) many aspects of the
practice of law had changed drastically since the days of the old Canons;

(b) those changes had made unreliable the present norms; and (c) there
was increased recognition of the profession's public responsibility.29 An-
other concern that moved the ABA towards reconsideration of ethical
norms was the question of enforcement. The ABA maintained that while
the Code should not deal directly with disciplinary action, the close
relationship between "the contents of the Canons and the observance

and enforcement thereof" should be recognized. 30

The Special Committee on Evaluation of Ethical Standards worked
for five years before any identifiable results were achieved. It was not

25. ABA Comm. on Professional Ethics and Grievances, ix (1957).
26. Drinker, supra note 8, at 274.

27. Id. at 275-78.

28. Morgan & Rotonda, supra note 19, at 374-410.
29. Aronson, supra note 14, at 30.

30. Id.



1992] ETHICS OPINIONS OF THE BAR 7

until 1969 that the Code of Professional Responsibility was adopted as

a result of these studies. 31

The new Code completely departed from the old Canons not only
in format, with its more logical structure, but also in its enforceability. 32

The previous thirty-two canons were reduced to nine, and were presented

as "statements of axiomatic norms, expressing in general terms the

standards of professional conduct expected of lawyers in their relationship

with the public, with the legal system, and with the legal profession. ,,33

The meaning of the canons was then spelled out in the "ethical
considerations' ' (EC), described as "aspirational in character.'' 34 They

expressed objectives towards which every lawyer should strive, and also

enunciated principles that will guide lawyers when making moral deci-
sions.35

The most distinctive feature of the new Code was the incorporation
of the "disciplinary rules" (DR) which were mandatory in nature, and

defined the "minimum level of conduct below which no lawyer can fall
without being subject to disciplinary action." 36 With the adoption of

the new format, the desire to comprise the aspirational standards of
excellence and the standards of minimal performance in one body was

achieved. 37 Now lawyers could look to the disciplinary rules for avoidance
of what was prohibited, and at the same time, to the Canons and ethical

considerations for guidance in their quest for the betterment of the

profession. Since the adoption of the Code, bar disciplinary procedures

have been enforced when violations of the DRs occur, unlike the Canons
and ECs which are referred to solely for purposes of clarification. There
are, however, rare exceptions, for example, in the application of Canon
9 regarding the appearance of impropriety.

Almost immediately, critics complained that the Code was insufficient
in dealing with some of the more basic issues of the practice of law,
such as the role of the lawyer as an instrument of change and development

of the law, as well as the behavior of lawyers in their daily activities.

Nonetheless, the new Code was recognized as a more practical instrument
than its predecessor, and at any rate, "the elevation of standards comes

in the main from neither exhortation nor codification." 38 One of the
strongest criticisms was that the Code directed its attention to litigators,

31. 94 ABA Rep. 389-92 (1964).
32. Charles Frankel, Book Review, 43 U. Cm. L. Rev. 874, 877 (1976).
33. Id. at 877 (quotation omitted).

34. Id.

35. Id.

36. Id. (quotation omitted).

37. Id.

38. Id. at 886.



8 INDIANA LAW REVIEW [Vol. 26:1

corporate lawyers, and large law firms while ignoring smaller law firms

and solo practitioners.39

5. The Model Rules of Professional Conduct.—For its supporters,
the adoption of the new Code signaled the completion of their task.
This view was not universal. Immediately following its adoption, some

observers characterized the Code, while a definite improvement from

the hortatory Canons, as nothing more than a stepping stone to the

ultimate goals of drafting a final and complete restatement of the law

of the profession.40 A new Code was needed which could address the
developing social role of the attorney. In 1977, the ABA appointed the
Commission on Evaluation of Professional Standards, also known as
the Kutak Commission, to develop that Code. After three unsuccessful

attempts, the Commission submitted the final draft of the proposed

Model Rules of Professional Conduct*1 The new proposed Rules were
intended to be revolutionary and included proposals to make pro bono
public work mandatory and to limit the attorney-client privilege respecting

confidential information. However, much of the Committee's work went
for naught, as the most dramatic changes were soundly defeated. Nearly

all that was achieved was a change in format.42

With the new format, however, the Model Rules preserved the
distinction between the legal order, the minimum duties and obligations
of the attorney on one hand, and the moral order and aspirations for

the improvements of the profession on the other hand. The former is

found in the Rules which are mandatory—simple enunciations of pos-
tulates. Alternatively, the nonbinding comments consist of explanations

of the Rules, elements of the legislative history and aspirations of the

ideal behavior of lawyers. This format is similar to the one adopted by

the American Law Institute in the Restatements of the Law. The impact
of the new Rules is seen in their adoption by more than half of the

states and their inspiration for modifications in the ethics codes of some

of the remaining states.

III. The Ethics Opinions of the Bar Associations

The ethics opinions of the bar are issued at different levels: by the

American Bar Association at the national level; by the state bar asso-

ciations at the state level; and by county and city bar associations at

the local level. In addition, specialized associations of lawyers, such as

39. Philip Schuman, Ethics and Legal Ethics: The Propriety of the Canons as a Group

Moral Code, 37 Geo. Wash. L. Rev. 244, 249-50 (1968).

40. Aronson, supra note 14, at 31.

41. Id.

A2. Jorge L. Carro, Book Review, 56 U. Cin. L. Rev. 207, 209 (1987).



1992] ETHICS OPINIONS OF THE BAR 9

the Patent Law Association and the Federal Bar Association, also issue
ethics opinions.

In some jurisdictions, including New Jersey, Ohio, Rhode Island,
and Tennessee, special advisory ethics committees exist which are not

directly affiliated with the bar. These committees, consisting of a body

of lawyers appointed by the supreme court of the state, are empowered

to issue advisory, nonbinding ethics opinions. 43 Although nonbinding,

these opinions may have more persuasive value than those issued by the
bar due to the close relationship between the issuing body and the highest

court of the state. This is a recent phenomenon. The impact the actions

of these special advisory committees may have on the self-assigned role
of the bar associations for the interpretation of the ethical norms cannot

be predicted at this early stage. However, it does not appear that the

existence of these special advisory boards has created any type of in-

terference with the work of the ethics committees of the bar. On the
contrary, both types of advisory bodies appear to be engaged in a

peaceful coexistence, as they quote from each other.44

Furthermore, prestigious and experienced law professors also issue

ethics opinions from time to time which are also sporadically quoted

by the courts. However, because of their non-bar nature, neither the

supreme court boards' opinions nor those of legal scholars are included

in this study.

A. The Ethics Opinions of the American Bar Association

1. The Origins and Development.—After the enactment of the orig-
inal Canons of Ethics in 1908, the ABA recognized the need for an
organized body capable of interpreting these Canons. To fill this void,
it amended the ABA's constitution and by-laws to create the ABA
Standing Committee on Professional Ethics. The by-laws read as follows:

The Committee on Professional Ethics shall communicate to the

Association such information as it may collect respecting the
activity of state and local bar associations in respect to the ethics

of the legal profession, and it may from time to time make
recommendations on the subject to the Association.*5

43. See N.J. Sup. Ct. R. 1:19 (1982); Supreme Court Rules for the Government of
the Bar of Ohio, R.V. (1985); Rules of the R.I. Sup. Ct. Ethics Advisory Panel No. 1 (1990);

and Tennessee Sup. Ct. Rules No. 9, § 26, (1980). See generally Ohio State Bar Ass'n Reports,

and William W. Hunt, An Overview of Formal Ethics Opinions in Tenn. 1980-1988, 19 Mem.
St. U. L. Rev. 275-325 (1989).

44. See Supreme Court of Ohio Bd. of Comm'r on Grievances and Discipline, Op.
8827 (1988) (quoting from opinions of the Arizona and Kentucky bars).

45. 39 ABA Rep. 559 (1914) (emphasis added).



10 INDIANA LAW REVIEW [Vol. 26:1

In 1919, the Committee was renamed the Committee on Professional

Ethics and Grievances46 and, in 1922, its governing by-laws were rewritten

to include additional provisions, such as the following:

Be authorized in its discretion to express its opinion concerning

proper professional conduct, and particularly concerning the ap-
plication of the tenets of ethics thereto, when consulted by

officers or committees of state or local bar associations. Such

expression of opinion shall only be made after consideration
thereof at a meeting of the Committee, and approval by at least

a majority of the Committee.
47

In 1958, the Committee on Professional Ethics and Grievances divided

into the Committee on Professional Grievances (adjudicatory) and the

Committee on Professional Ethics (advisory), which in 1971 was renamed

Standing Committee on Ethics and Professional Responsibility.48

The Ethics Committee adopted rules of procedure on July 21, 1971.
One of their primary purposes was to advise members of the Bar, in
the form of opinions, on the ethical propriety of their contemplated

professional or judicial conduct:49

The Committee may issue opinions of two kinds: Formal Op-
inions and Informal Opinions. Formal Opinions are those upon

subjects determined by the Committee to be of widespread interest

or unusual importance. Other opinions are Informal Opinions.

The Committee shall assign to each opinion a non-duplicative

identifying number, with distinction between Formal Opinions

and Informal Opinions. 50

The opinions are issued upon written request to any ABA member
and are based solely upon the facts presented. According to the limitations
included in the Rules, opinions are not be issued on questions of law,

on matters subject to litigation, or on questions involving previous

conduct.51

2. The Sources.—
a. Official

46. ABA Comm. on Professional Ethics, 1 (1967).
\ 47. Id. at 1-2. (emphasis added).

48. ABA Standing Committee on Ethics and Professional Responsibility. Composition
and Jurisdiction; Rules of Procedure, reprinted in Morgan & Rotonda, supra note 19, at
457-59.

49. Id.

50. Id. (emphasis added).

51. Id.



1992] ETHICS OPINIONS OF THE BAR 11

As noted earlier, the American Bar Association's Formal Opinions
were published in the American Bar Association Journal. 52 Summaries

of certain informal opinions were included in the Journal, but most

informal opinions were compiled in a separate volume appropriately

titled Informal Opinions, which was regularly supplemented.53

In contrast, the opinions issued by the state and local bar associations

are distributed in a variety of ways. Those deemed most important are
printed and either circulated among the association's members or inserted
into their official publications. 54 Certain digests, including Olavi Maru's

Digest of Bar Association Ethics Opinions, publish condensed versions

of both the state and local opinions together with the formal and informal

opinions of the ABA.55 Not all bar association opinions are reported,
one reason being the lack of a standardized reporting system. However,

seven thousand opinions were reported in Maru's 1972 Digest. 56

Even with the above sources, there remained a need for a more
comprehensive and centralized compendium of ethics materials. In 1980,
the American Bar Association joined efforts with the Bureau of National

Affairs and published the Lawyer's Manual of Professional Conduct.
This is a regularly updated three-volume, loose-leaf service that publishes

cases, ethics opinions, legislative actions, and disciplinary proceedings. 57

In the manual, the ABA formal and informal opinions are reproduced
verbatim, while the state and local bar opinions are pinpointed on a
selective basis and condensed. 58 At the same time the ABA continues
to publish a loose-leaf service titled Recent Ethics Opinions.

In 1981 an individual attorney's ability to access ethics materials

was greatly increased by the Shepard's/McGraw's addition of Shepard's

Professional and Judicial Conduct Citations to its series of citators. 59

This citator is published triennially in March, July, and November, and

each issue is cumulative.60 The service consists of a compilation of
citations not only to the ABA formal and informal opinions, but also
to the rules of procedure of the American Bar Association's Standing

52. Olavi Maru, Digest of Bar Association Ethics Opinions 2 (1970). After their
appearance in the A.B.A. Journal, the formal opinions were compiled in the official text which

is the ABA Opinions of the Committee on Professional Ethics Annotated. Citations of the
opinions refer to the compilation and not to the Journal. See supra note 46.

53. Maru, supra note 52, at 2.
54. In some states, selected opinions are published in condensed form in the state bar

association journal.

55. See Maru, supra note 52.
56. Id.

57. Laws. Man. on Prof. Conduct (ABA/BNA) (1980).
58. Id.

59. Shepard's Professional & Judicial Conduct Citations (Shepard's) (1981).
60. Id. at 5.



12 INDIANA LAW REVIEW [Vol. 26:1

Committee on Ethics and Professional Responsibility.61 Also cited are

the Model Code of Professional Responsibility, the Model Rules of
Professional Conduct, and the Code of Judicial Conduct.62

b. Unofficial

In addition to the official publications of the bar, several authors

have contributed to the law of ethics by privately compiling and publishing

ethics opinions. The first of these works was Henry S. Drinker's Legal

Ethics, which was published in 1953 and reprinted upon demand in
1954.63 Drinker, who was the Chairman of the ABA Committee of
Professional Ethics and Grievances at the time of the publication, au-

thored a treatise which relied heavily on court decisions as well as on

ethics opinions. In fact, Drinker cited more than 900 cases, along with
287 published ABA formal opinions and more than 380 unpublished
opinions.64 Drinker also relied heavily upon the opinions of state and
local bars, as evidenced by his citation to more than 3000 of their

opinions. 65 Drinker's work was extremely popular in its time and its

impact is still evident, as it is currently cited in court decisions and

ethics opinions. In fact, some of the ethics opinions, reported as cited

by the courts in this study, have not been directly quoted from the bar

publications but from Drinker's work.

In 1966, Raymond L. Wise's Legal Ethics, the second seminal treatise
on legal ethics opinions was published. The popularity of this work was

evidenced by the appearance of a second edition in 1970, a reprint in

1972, and supplements in 1973 and 1979. Wise's work echoed the profes-

sion's growing respect for ethics opinions, for it was solely based upon

hundreds of ethics opinions.66

In addition to these two works, which were considered the Delphian

oracles of professional responsibility,67 a number of textbooks, treatises,

compilations, etc., have been devoted to the subject of legal ethics. With

61. Id. at 2-3.

62. The cited opinions are those that have previously appeared in United States Reports,

Supreme Court Reporter, Lawyers' Edition, Federal Reporter, Federal Supplement, Federal

Rules Decisions, Bankruptcy Reporter, United States Claims Court Reporter, and all state

reports included in West's National Reporter System. It also includes those formal and informal

opinions of the ABA and of the state and local associations cited in numerous law reviews,
including the ABA Journal, and A.L.R. annotations. In addition, they refer to ethics opinions
that are cited by the bar in their own opinions.

63. Drinker, supra note 8, at ii.

64. Id. at 304-08, 380-410.

65. Id. at 410-36.

66. Raymond L. Wise, Legal Ethics (2d ed. 1970).
67. Carro, supra note 42, at 209.



1992] ETHICS OPINIONS OF THE BAR 13

a few exceptions, these works consistently referred to the ethical opinions

of the bar as persuasive authority, a view which is reflected in the

court's characterization of opinions as "advice to members of the bar

and the public."68

c. Computerized

Most recently, Westlaw and Lexis have incorporated in their data
banks the ABA formal and informal opinions. In addition, Westlaw has
started to include some of the states' opinions.

3. Present Status of the Ethics Opinions of the ABA: The De-
partment of Justice Antitrust Suit.—In addition to the inherent rights
of the states' highest court to regulate and guide the activities of the

legal profession, lawyers have been able to police themselves through

the disciplinary actions of their committees on grievances and the advisory

efforts of their ethics committees. The disciplinary process usually involves

both the court system and the Bar, since the attorney in question must

be accorded his due process. However, the preventive efforts of the bar

via the issuance of ethics opinions is a prerogative that the Bar has

been exercising with full autonomy throughout its history. This concept
of self-regulation has upset some and prompted questioning of the validity

of self-regulation against governmental control. 69

In 1980, the Florida House of Representatives considered proposing
an amendment to the state constitution which would take exclusive
jurisdiction over the bar away from the state Supreme Court. Similar
attempts have occurred in Virginia, Arizona, New Jersey and other
states.

70 In Bates v. State Bar of Arizona, 11 the United States Supreme

Court established that when self-regulation conflicts with speech protected
by the First Amendment, the protected speech must prevail. Furthermore,
in Goldfarb v. Virginia State Bar,12 the Supreme Court suggested that

if the regulatory goal of the state is mandated in state policy, it will

always prevail over federal anti-competitive goals, giving the edge to the

states over the Bar.

As previously explained, the advisory ethics opinions of the Bar are
provided by special bar committees in response to inquiries posed by

the membership. 73 Usually, they are the product of carefully researched

68. Wise, supra note 66, at 9. See also International Graphics v. United States,

5 CI. Ct. 97, 99 (1984).

69. Joseph W. Little & Randolph J. Rush, Resolving the Conflict Between Professional
Ethics Opinions and Antitrust Laws, 15 Ga. L. Rev. 341, 341-42 (1980).

70. Id. at 341 n.2.

71. 433 U.S. 350 (1977).

72. 421 U.S. 773 (1975).

73. See supra note 50 and accompanying text.



14 INDIANA LAW REVIEW [Vol. 26:1

and deliberated efforts, and some believe that they carry "about the

same weight as an attorney general's opinion of law; they are studied

opinions, due weighty consideration, but are not binding on the courts."74

Despite the absence of binding force, the ethics opinions are widely

circulated and do "discourage disapproved behavior."75 This restraining

effect has given rise to questions concerning antitrust violations. 76

On June 25, 1976, the Justice Department filed a complaint under
Section 1 of the Sherman Antitrust Act against the American Bar As-
sociation challenging the activities of the ABA regarding the regulation
of advertising for attorneys.77 The complaint alleged that the ABA had
"violated Section 1 of the Sherman Act by adopting and policing un-

reasonable restrictions on competitive advertising by lawyers and that

members of the A.B.A. have unlawfully combined and conspired with

the defendant to abide by such restrictions."78 Among the violations
claimed were that the Bar's interpretation of the Code's provisions upon
advertising was incorrect,79 and that the ABA's Standing Committee on
Ethics and Professional Responsibility's issuance of opinions interpreting

and applying the provisions of the Code regarding advertising constituted
a restriction on trade.80

On August 30, 1978, however, the Justice Department filed a motion
dismissing the antitrust suit against the ABA without prejudice. 81 The
main reason for the department's decision to dismiss came from the
internal changes in the ABA during the time between the filing of the
complaint and its dismissal. The Supreme Court's opinion in Bates
catalyzed many of these changes.82 As a result, the Bar took several

74. Little & Rush, supra note 69, at 343.
75. Id.

76. Id.

11. Justice Department Dismisses Antitrust Suit Against American Bar Association, 64

A.B.A. J. 1538 (1978) [hereinafter Justice Department).

78. From the Justice Department's memorandum in support of its motion to dismiss,
reproduced in id. at 1539.

79. Id.

80. Id. at 1539-40.

81. Id. at 1538.

82. In this case the court declared that broad restrictions on advertising imposed by

the state of Arizona violated the First Amendment, therefore voiding all existing state rules

and regulations. The Arizona statute on advertising was identical to the ABA provision. Bates
v. State Bar of Ariz., 433 U.S. 350 (1977); see supra note 71 and accompanying text.



1992] ETHICS OPINIONS OF THE BAR 15

steps directed towards relaxing its rules on advertising. 83

As a result of the antitrust suit the ABA announced that in regard
to advertising, neither the Code nor the interpretive (ethics) opinions of
the Ethics Committee bind any individual lawyer, and that it takes no

steps to assure individual compliance with them.

4. Composition, Jurisdiction and Procedure of the ABA Committee
on Ethics and Professional Responsibility.—The ABA Committee on
Ethics and Professional Responsibility consists of eight members, all

lawyers. The Committee issues opinions, approved by a simple majority

of its members, on proper professional and judicial conduct. The opinions

are issued either on its own initiative, or when required to do so by a
member of the Bar or an officer or committee of a state or local bar
association. However, an opinion may not be issued on a question that
is pending before a court. 84

B. The Ethics Opinions of the State and Local Bar Associations

Long before the ABA issued its first ethics opinion in 1924, the
New York County Lawyers' Association established its first ethics com-
mittee in 1908. In 1912, the committee was authorized to render ethics

opinions.85 This activity was not limited to the New York Bar, as many
state and local bar associations followed their path; it was reported in

1980 that eighty percent of all state and twenty-three percent of all local

bar associations issue ethics opinions. 86 The composition and procedures
of these committees vary from state to state but the majority follow

that of the ABA. One distinctive feature of these state and local bar
committees is the active and influential role of bar counsels in drafting

ethics opinions.

IV. Impact of Ethics Opinions of the Bar in Court Decisions

Regardless of the nonbinding status of the bar's ethics opinions,

both federal and state courts have frequently referred to them when
deciding cases relating to ethical issues of the profession. The courts
have often followed these opinions, although at times they have distin-

83. After Bates, the ABA appointed a special committee to deal with the question of
advertising. The Committee, in June 1978, recommended several changes directed to the relaxation

of the rules; for example, allowing television advertising. See Justice Department, supra note

77, at 1540-41.

84. ABA Standing Committee on Ethics and Professional Responsibility. Composition
and Jurisdiction, (1971), reprinted in Morgan & Rotonda, supra note 19, at 458.

85. Charles A. Boston, Practical Activities in Legal Ethics, 62 U. Pa. L. Rev. 103,

111 (1913).

86. ABA Directory of Bar Activities 14 (1980).



16 INDIANA LAW REVIEW [Vol. 26:1

guished, and even criticized, them. The opinions have been applied by
courts in many different contexts: conflicts of interest (the most popular
area); advertising; fee disputes; civil claims; and even in questions of

ineffective assistance of counsel. The organized bar, of course, relies
heavily on these opinions in their adjudicatory decisions (disciplinary

proceedings), as well as in their advisory role.

However, this apparent respect for ethics opinions has not been

universally shared. Some strong voices, mostly emanating from the ac-
ademic community, have expressed sharp criticism over their practical

value. The criticism centers not only on questions of merit, but also on

matters of procedure.

Although some isolated studies have been conducted relative to the

ethics opinions of the bar, there is a need for a comprehensive study

directed at measuring their impact on the courts, both from a quantitative

as well as a qualitative point of view. These findings must be contrasted

with the opinions of the critics.

The following section will be devoted to the presentation and analysis
of the survey of the ethics opinions that we have conducted, and a
review of the literature on the subject.

A. The Survey

Our study is based on a computerized survey of federal and state
court decisions citing ethics opinions of the bar from 1924 to 1990.

Based on the collected data a quantitative and qualitative analysis was

attempted. 87

B. Quantitative Analysis

The findings showed that a total of 1194 opinions were cited in 639

87. This empirical study was conducted by using LEXIS. The COURTS files from the
GENFED library and the individual files from the STATES library were used. All necessary
precautions were taken in attempting to make the survey as comprehensive as possible. Originally,

the search was made using a combination of search terms like "committee," "professional,"

and "ethics." It was found, however, that there was no uniformity in the committee names

nor in the way they were cited by the courts. It was only when a more general search term,

"ethics," was used that substantial progress was achieved. The return was great and more

than 4000 cases had to be reviewed. Another problem was the discrepancies in the scope of

the different files. As those files are still at a developing stage, some covered a greater number

of years than others. For all these reasons, the author cannot claim absolute inclusiveness. It

is possible that a substantial number of cases citing ethics opinions remain undiscovered.

However, if that is the situation, it will only reinforce our conclusions. In spite of all this,

this cumbersome task could not be accomplished without the use of computerized legal research.



1992] ETHICS OPINIONS OF THE BAR 17

cases by federal and state courts at different levels. Of the cited cases,
203 were decided before 1978 and 436 thereafter. It was on August 30,

1978, that the Department of Justice filed the motion to dismiss its

antitrust suit against the ABA after the bar announced its ethics opinions
were not binding.88 For quantitative analysis purposes the data obtained

from the survey will be divided in two major groups: federal courts

and state courts.

7. Federal Courts.—The federal courts were responsible for citing
317 opinions in 171 cases. A breakdown by court follows.

a. Supreme Court

In fourteen cases decided by the United States Supreme Court, thirty

ethics opinions were cited: six ABA Formal; three ABA Informal, six
issued by state or state-like bars (District of Columbia, Georgia, Ken-

tucky, Maine, Michigan and Virginia); nine by the New York County
Bar Association; and six by city bars (Chicago and New York City).
Of the cited cases, three referred to ABA Committee on Ethics and
Professional Responsibility, Formal Op. 148 (1935), which deals with

the issue of solicitation and legal services for the poor. 89 Two cases cited
ABA Informal Op. 955 (1975), which deals with the duty of counsel
to avoid frivolous appeals. 90 One case cited ABA Informal Op. 469
(1961), which refers to pre-paid legal services. 91 In another case, a

concurring opinion referenced two ABA formal opinions which related
to radio and television broadcasting of court proceedings.92 Finally, in

three cases the Court relied on one state and two local bar opinions. 93

88. The search covered the period of 1924 to 1990, but the first citation retrieved was

1946. The absence of citations between 1924 and 1946 may be attributed to the limitations
on the publication of the opinions. Drinker's first printing of his text, which constituted the

first attempt to publish the ethics opinions of the bar in an organized manner, appeared in

1953. See Drinker, supra note 8.

89. The Court referred to this opinion in NAACP v. Button, 371 U.S. 415, 440 n.19
(1962), In re Primus, 436 U.S. 412, 437 (1978), and Ohralik v. Ohio State Bar Ass'n, 436

U.S. 447, 463 n.20 (1978).

90. Polk County v. Dodson, 454 U.S. 312, 323 n.14 (1981) and McCoy v. Court of
App. of Wis., 486 U.S. 429, 436 n.8 (1988) (which also cited ABA Informal 956, similar to
the aforementioned 955).

91. United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 224 (1967).

92. Estes v. Texas, 381 U.S. 532, 597 (1965) (Harlan, J., concurring) (referring to

ABA Comm. on Professional Ethics and Grievances, Op. 67 (1932) & Op. 212 (1941)).
93. In Goldfarb v. Virginia State Bar, 421 U.S. 773, 777 (1975) the Court cited Op.

98 of the Va. State Bar Comm., and in both Bates v. State Bar of Ariz., 433 U.S. 350 (1977)
and Ohralik v. Ohio State Bar Ass'n 436 U.S. 447, 460 (1978), reference was made to Op.
47 of New York County Bar Ass'n (quoting Drinker, supra note 8, at 211 n.5). The Virginia
opinion referred to fee schedules and the New York opinion with solicitation.



18 INDIANA LAW REVIEW [Vol. 26:1

b. Courts of appeals

The federal courts of appeals cited a total of eighty-four ethics

opinions in forty-one cases from 1972 to 1990. Thirty-six of the cited

opinions were ABA formal and twenty ABA informal. Twenty opinions
were issued by state bar associations,94 three by county bar and five by

city bars.
95 Some circuits appeared more inclined to cite ethics opinions

than others.96

The cited opinions by the courts of appeals referred to a variety of

ethical issues. Questions regarding fees were frequently resolved by the

courts including: fee sharing,97 attorneys' prohibition to charge non-legal

fees as a broker,98 minimum fee schedules,99 contingent fees, 100 and fee
negotiations. 101 The Courts' reliance on ethics opinions when dealing
with motions to disqualify was also evident, as eight cases were identified

in this area. 102

94. Arizona (4), Connecticut (1), Delaware (1), District of Columbia (2), Florida (1),
Illinois (1), Michigan (2), New York (3), North Carolina (1), Oregon (3), and Texas (1).

95. Los Angeles County (1), New York County (2) and New York City (5).
96. The Second Circuit led the group with nine citations (1979-88); DC followed with

seven (1972-85); Ninth with five (1973-83); Seventh with five (1972-83); Fourth with four

(1981-89); Fifth with three (1976-83); Third with two (1979-82); Tenth with two (1979-82)

and Eleventh with two (1983-87). No opinions appeared to be cited by the First or the Eighth.
97. See Dietrich Corp. v. King Resources Co., 5% F.2d 422, 426 (10th Cir. 1979)

(citing ABA Formal Op. No. 316 (1967)); National Treasury Employees Union v. United
States Dep't of Treasury, 656 F.2d 848, 851-52 (D.C. Cir. 1981) (citing ABA Formal Ops.
48 (1931), 180 (1938), 294 (1958), ABA Informal Op. 544 (1975)); Digest of Bar Ass'n Ethics
Ops. 647, 1272, 1391, 1429, 2245, 3020, 3304, 3610, 3735 (O. Maru ed. 1970); 1970 Supp.

to the Digest of Bar Ass'n Ethics Ops. 5048, 5061, 5190, 5935 (O. Maru ed. 1972); 1975

Supp. to the Digest of Bar Ass'n Ethics Ops. 7509, 9178 (O. Maru ed. 1977); Stissi v.

Interstate & Ocean Transp. Co., 814 F.2d 848, 852 (2d Cir. 1987) (citing ABA Formal Ops.
97 (1933) and 153 (1936)).

98. Leonard v. BHJK Corp., 469 F.2d 108, 113 (D.C. Cir. 1972) (citing ABA Informal
Ops. 709 (1964) and 775 (1965)).

99. Mills v. United States, 713 F.2d 1249, 1255 (7th Cir. 1983) (citing ABA Formal
Op. 302 (1970)).

100. In re Forfeiture Hearing as to Caplin & Drysdale Chartered, 837 F.2d 637, 654
(4th Cir. 1988) (Murnaghan, J., concurring) (citing ABA Informal Op. 1521 (1986)).

101. See Western Fire Ins. Co. v. National Union Fire Ins. Co., 477 F.2d 1026, 1028

(9th Cir. 1973) (citing ABA Formal Op. No. 198 (1939)), and Moore v. National Ass'n of
Sec. Dealers, Inc., 762 F.2d 1093, 1103 (D.C. Cir. 1985) (citing Op. 80-94 of New York
City Bar Ass'n (1981) and Op. 147 of the District of Columbia Bar (1985)).

102. See General Motors Corp. v. City of N.Y., 501 F.2d 639, 649 (2d Cir. 1974)

(citing ABA Formal Op. 37 (1931)); J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1359
(2d Cir. 1975) (citing ABA Formal Ops. 330 (1972) and 339 (1975)); Woods v. Covington
County Bank, 537 F.2d 804, 812-16 (5th Cir. 1976) (citing ABA Formal Ops. 26 (1930), 37
(1931), 135 (1935) and Informal Ops. 885 (1965) and 1166 (1970)); W.T. Grant Co. v. Haines,

531 F.2d 671, 674-76 (2d Cir. 1976) (citing ABA Formal Ops. 58 (1931), 102 (1933), Informal



1992] ETHICS OPINIONS OF THE BAR 19

When dealing with conflicts of interest involving government lawyers
the courts have also paid attention to the ethical opinions of the bar,

as evidenced on five occasions. 103 In one case involving conflicts between

the insurer and the insured, the court referred to both ABA and state
ethics opinions. 104 The other four cases—one involving conflicts of cor-
porate attorneys, one with appearance of impropriety, and two related

to conflicts in the prosecution—also referred to ethics opinions. 105
Furthermore, in a variety of issues relating to ethics, the courts

referred to or relied on ethics opinions on questions as diversified as:

attorneys as witnesses, 106 liens on clients' files, 107 attorneys' work

Ops. 908 (1966), 1034 (1968), 1140 (1970), 1269 (1973)), and New York State Bar Op. 358
(1974); Armstrong v. McAlpin, 606 F.2d 28, 29-32 (2d Cir. 1979) (citing ABA Formal Ops.
37 (1931) and 342 (1975), as well as Op. 889 (1976) of the Bar of the City of York); and

United States v. Heldt, 668 F.2d 1238, 1275 (D.C. Cir. 1981) (citing Oregon State Bar Comm.
on Legal Ethics Op. 386 (1978)).

103. United States v. Ostrer, 597 F.2d 337, 339-40 (2d Cir., 1979) (citing ABA Comm.
on Professional Ethics and Grievances, Formal Op. 342 (1975); N.Y. State Bar Ass'n Comm.
on Professional Ethics, Op. 506 (1979)); LaSalle Nat'l Bank v. County of Lake, 703 F.2d

252, 258 (7th Cir. 1983) (citing ABA Comm. on Professional Ethics and Grievances, Formal
Op. 342 (1975); 111. State Bar Ass'n Professional Ethics Ops. 762 (1982) & 811 (1982));
McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1264 (5th Cir. 1983) (citing Tex. Ethics
Comm. Op. 148 (1957)); Paul E. Iacono Structural Eng'r, Inc. v. Humphrey, 722 F.2d 435,
440 (9th Cir.), cert, denied, 464 U.S. 851 (1983) (citing ABA Comm. on Professional Ethics
and Grievances, Formal Op. 342 (1975)); Unified Sewerage Agency v. Jelco Inc., 646 F.2d

1339, 1347-1350 (9th Cir. 1981) (citing ABA Comm. on Professional Ethics and Grievances,
Formal Ops. 132 (1935) & 331 (1972); ABA Comm. on Ethics and Professional Responsibility,
Informal Ops. 1157 (1970), 1235 (1972) & 1282 (1973); Or. State Bar Ops. 45 (1957), 57
(1957), 135 (1964), 218 (1972) & 376 (1977)).

104. See In re A.H. Robins Co., Inc., 880 F.2d 709, 751 (4th Cir.), cert, denied, 493

U.S. 959 (1989) (citing ABA Comm. on Ethics and Professional Responsibility, Informal Op.
1476 (1981); Conn. Informal Op. 83-5 (1982); Del. Op. 1981-1 (1981); Mich. Op. CI-866

(1983)).

105. See Evans v. Artek Systems Corp., 715 F.2d 788, 792 (2d Cir. 1983) (citing ABA
Comm. on Ethics and Professional Responsibility, Informal Op. 516 (1962) and 1056 (1968));
First Wis. Mortgage Trust v. First Wis. Corp., 584 F.2d 201, 220 (7th Cir. 1978) (citing

ABA Comm. on Ethics and Professional Responsibility, Informal Op. 885 (1965)); Jones v.
Richards, 776 F.2d 1244, 1247 (4th Cir. 1985) (citing N. C. State Bar Ethics Op. 595).

106. See Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C. Cir. 1981) (citing

ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1446 (1980)); In re
Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litig., 658 F.2d 1355, 1359

(9th Cir. 1981), cert, denied, 455 U.S. 990 (1982) (citing ABA Comm. on Ethics and Professional
Responsibility, Informal Op. 828 (1965)); United States v. Birdman, 602 F.2d 547, 552 (3d

Cir. 1979), cert, denied, AAA U.S. 1032, and cert, denied, 445 U.S. 906 (1980) (citing ABA
Comm. on Professional Ethics and Grievances, Formal Op. 50 (1931)).

107. Pomerantz v. Schandler, 704 F.2d 681, 683 (2d Cir. 1983) (citing ABA Comm.
on Professional Ethics and Grievances, Formal Op. 1461 (1980)).



20 INDIANA LAW REVIEW [Vol. 26:1

product, 108 advancing living expenses to clients, 109 substituting a person

for the defendant in a criminal procedure, 110 attorneys
,

liens,
111

Interest

On Lawyers Trust Accounts (IOLTA), 112 solicitation in class actions, 113

and consideration of certain types of litigation as constitutionally pro-

tected.
114

c. District courts

The district courts cited a total of 162 opinions in eighty-six cases
from 1958 to 1990. Fifty-one of the cited opinions were ABA formal
and twenty ABA informal. Fifty-two were issued by state bar associa-
tions,

115
fifteen by county bars, 116 and twenty-four by city bars. 117

The opinions cited by the district courts addressed a variety of ethical

issues. The district courts frequently applied bar opinions in the area

of conflicts of interest, 118 particularly when dealing with questions of

108. Parrott v. Wilson, 707 F.2d 1262, 1271 (11th Cir. 1983), cert, denied, 464 U.S.

936 (1983) (citing ABA Comm. on Professional Ethics and Grievances, Formal Op. 337
(1974)); ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1320 (1975);
N.Y. State Bar Ass'n Comm. on Professional Ethics, Op. 328 (1974)).

109. See In re Ruffalo, 370 F.2d 447, 450 (6th Cir. 1966), rev'd, 390 U.S. 544 (1968)

(citing ABA Comm. on Professional Ethics and Grievances, Formal Op. 288 (1954)); In re
Dawson, 609 F.2d 1139, 1143 (5th Cir. 1980) (citing Florida Bar Professional Ethics Comm.
Op. 65-39 (1965)).

110. United States v. Thoreen, 653 F.2d 1332, 1340 (9th Cir. 1981), cert, denied,

455 U.S. 938 (1982) (citing ABA Comm. on Ethics and Professional Responsibility, Informal
Op. 914 (1966)).

111. Jenkins v. Weinshienk, 670 F.2d 915, 920 (10th Cir. 1982) (citing ABA Comm.
on Ethics and Professional Responsibility, Informal Op. 1461 (1980)).

112. Cone v. State Bar of Fla., 819 F.2d 1002, 1005 (11th Cir. 1987), cert, denied,

484 U.S. 917 (1987) (citing ABA Comm. on Professional Ethics and Grievances, Formal
Op. 348 (1982)).

113. Halverson v. Convenient Food Mart, Inc., 458 F.2d 927, 930-31 (7th Cir. 1972)

(citing ABA Comm. on Professional Ethics and Grievances, Formal Ops. 7 (1925) and
111 (1934); N.Y. City Bar Ass'n Comm. on Professional Ethics, Op. 717 (1948); N.Y.
County Bar Ass'n Comm. on Professional Ethics, Op. 47 (1914) and 228 (1924)).

114. International Union v. National Right to Work Legal Defense & Educ. Found.,
590 F.2d 1139, 1148 (D.C. Cir. 1978) (citing ABA Comm. on Professional Ethics and
Grievances, Formal Op. 148 (1935)).

115. Arizona (2), Connecticut (1), District of Columbia (8), Florida (2), Idaho (1),

Illinois (2), Louisiana (3), Maryland (2), Massachusetts (2), Michigan (4), Mississippi (1),

New Jersey (1), New York (10), Oklahoma (1), Oregon (2), Tennessee (1), Texas (6),
Virginia (1), Washington (1), and Wisconsin (1).

116. New York (13) and Allegheny (2).
117. New York (21), San Diego (2), and San Francisco (1).
118. Forty-eight of the cases citing ethics opinions dealt with conflicts of interest

issues.



1992] ETHICS OPINIONS OF THE BAR 21

disqualification,
119 confidentiality,

120 and government lawyers. 121 Other

ethics opinions cited referred to fees, communication with adverse parties,

recording of conversations, and advertising and solicitation.

d. Other federal courts

The federal courts' reliance on ethics opinions of the bar when

dealing with ethics issues is not limited to the regular courts, as some

federal courts with special jurisdiction have followed the same pattern.

The United States Court of Claims (United States Claims Court after

1982) has cited six ethics opinions in four cases from 1977 to 1984.

Three of these opinions were ABA formal opinions, one ABA informal
opinion, one opinion issued by a state-like bar (District of Columbia),

and one opinion was issued by a city bar (New York). The cases dealt
with a variety of issues like conflicts, recording of conversations, and

communication with witnesses. 122 In a 1982 case, the United States Court

of Customs and Patent Appeals cited ABA Formal Opinion No. 342
(1975) in dealing with the question of disqualification of a government

lawyer. 123

The United States Court of International Trade, in a 1989 decision,

cited ABA Formal Op. 342 (1985) in dealing with the specialization of
government lawyers. 124 The United States Bankruptcy Courts have cited

five ethics opinions in five cases from 1990 to 1991. Two of the cited
opinions were ABA informal opinions, one opinion was issued by the
New York State Bar, and two opinions were issued by the San Francisco
Bar. The bankruptcy courts have referred to ethics opinions when dealing
with problems of advance payment retainers. 125

The military courts apply the Model Code of Professional Respon-
sibility to its lawyer members when dealing with ethical issues. These

119. See, e.g., Realco Servs., Inc. v. Holt, 479 F. Supp. 867, 871 (E.D. Pa. 1979)

(citing ABA Comm. on Ethics and Professional Responsibility, Informal Op. 885 (1965)).
120. See Moore v. Margiotta, 581 F. Supp. 649, 652-53 (E.D.N.Y. 1984) (citing

N.Y. State Bar Ass'n Op. No. 555 (1984)).

121. See, e.g., In re Grand Jury Proceedings, 700 F. Supp. 626, 630, aff'd, 875

F.2d 927 (1989) (D.P.R. 1988) (citing ABA Comm. on Professional Ethics and Grievances,
Formal Op. 342 (1975)).

122. Kesselhaut v. United States, 555 F.2d 791, 793-94 (Ct. CI. 1977) (citing ABA
Comm. on Professional Ethics and Grievances, Formal Op. 342 (1975); N.Y. City Bar
Ass'n Comm. on Professional Ethics, Op. 889 (1976)).

123. Ah Ju Steel Co., Ltd. v. Armco, 680 F.2d 751, 754 (C.C.P.A. 1982) (citing
ABA Comm. on Professional Ethics and Grievances, Formal Op. 342 (1975)).

124. National Bonded Warehouse Ass'n, Inc. v. United States, 718 F. Supp. 967, 971

(Ct. Int'l Trade 1989).

125. In re McDonald Bros. Constr., Inc., 114 B.R. 989, 1001-03 (Bankr. N.D. 111.

1990).



22 INDIANA LAW REVIEW [Vol. 26:1

courts have frequently referred to ethics opinions of the bar for clari-

fication and explanation of the code provisions. Twenty-seven of these

opinions have been cited in nineteen cases from 1955 to 1989. 126 Fifteen

of these opinions were ABA formal opinions and nine were ABA in-
formal. The rest of the opinions came from the bars of one state
(Kentucky), one county (New York), and one city (New York). The
cases in question mostly involved issues of conflicts of interest. 127

2. State Courts.—The state courts, at different levels, have cited
a total of 881 ethics opinions in 468 cases from 1948 to 1991. Two
hundred and eighty-three of the cited opinions were ABA formal and
103 were ABA informal. Three hundred and twenty-six were issued by
state bar associations (including state-like bars, e.g. D.C.), sixty-five by

county bars and 104 by city bars. (See Appendix.)

Like the federal courts, the state courts have also addressed a variety

of ethical issues when citing ethics opinions. The great majority of the
cited opinions dealt with conflicts of interest, 128 followed by an array of

issues such as splitting fees, 129 authority of an ethics opinion, 130 an attorney's

duty to report other attorneys' misconduct, 131 definition of neglect, 132

bartering clients, 133 communications with corporate employees, 134

126. These cases have been decided by a variety of military courts: U.S. Court of

Military Appeals (5 cases), U.S. Army Court of Military Review (6), U.S. Navy-Marine Corps
Court of Military Review (5), U.S. Air Force Board of Review (2), and U.S. Coast Guard

Court of Military Review (1).

127. E.g. United States v. Nicholson, 15 M.J. 436, 438 (1983) (citing ABA Comm.
on Ethics and Professional Responsibility, Informal Op. 1474 (1982)).

128. E.g., Turbin v. Superior Ct. of the State of Ariz., 797 P.2d 734, 737 (Ariz. Ct.

App. 1990) (citing ABA Comm. on Professional Ethics and Grievances, Formal Op. 342
(1975)).

129. Breckler v. Thaler, 151 Cal. Rptr. 50, 54 (Cal. Ct. App. 1978) (citing ABA Comm.
on Professional Ethics and Grievances, Formal Ops. 153 (1936) & 204 (1940); ABA Comm.
on Ethics and Professional Responsibility, Informal Ops. 391 (1960), 848 (1965), 932 (1966),

& 936 (1966)).
130. Esquire Care, Inc. v. Maguire, 532 So. 2d 740, 742 (Fla. Dist. Ct. App. 1988)

(citing Fla. Bar Op. 86-5 (1986)).

131. In re Himmel, 533 N.E.2d 790, 793 (111. 1989) (citing ABA Comm. on Ethics
and Professional Responsibility, Informal Op. 1210 (1972)).

132. Attorney Grievance Comm'n v. Ficker, 572 A.2d 501, 504 (Md. 1990) (rejecting
ABA Comm. on Ethics and Professional Responsibility, Informal Ops. 1273 (1973), 1428
(1979), & 1467 (1981)).

133. Detroit Bank & Trust Co. v. Coopes, 287 N.W.2d 266, 269 (Mich. Ct. App.
1979) (citing N.Y. County Bar Ass'n Comm. on Professional Ethics, Op. 109 (1943)).

134. Niesig v. Team I, 558 N.E.2d 1030, 1033-36 (N.Y. 1990) (citing ABA Comm. on
Ethics and Professional Responsibility, Informal Op. 1410 (1978); Alabama State Bar Ass'n

Ethics, Op. RO-83-81 (1983); Alaska Bar Ass'n Ethics, Op. 71-1 (1971); Colorado Bar Ass'n,

Op. 69 (1985); Idaho State Bar Ass'n, Formal Op. 21 (1960); Professional Ethics Comm.,
Bar of the State of Me., Op. 94 (1989); Massachusetts Bar Ass'n, Formal Op. 82-7 (1982);



1992] ETHICS OPINIONS OF THE BAR 23

and clients' documents. 135

Some state courts appeared more inclined to cite ethics opinions than
others. New York (144), New Jersey (116), and Oregon (44) led the states
with a substantial number of ethics opinions cited during the survey period.

It does not appear, however, that the courts of Nebraska, Vermont, or

the Virgin Islands have ever cited ethics opinions. In citing ethics opinions,

courts have shown preference for the ABA formals and informals, followed
by those issued by their own state bars. Nonetheless, state courts eagerly
cited opinions from other state and city bars. (See Appendix.)

The preceding quantitative analysis reveals a substantial number of cases

reported by both federal and state courts, at various levels, that cited bar

ethics opinions. Such citations have increased, instead of decreased, during

the years following the ABA's announcement that its ethics opinions are
not binding. Based on reported data, one must conclude that when courts

are confronted with ethical issues they do not hesitate to rely on the bar

ethics opinions for guidance.

C. Qualitative Analysis

In order to evaluate the impact that ethics opinions have on the decision

making process of the courts, it is necessary to explore some methods of

testing that are not purely quantitative; for example, measuring the degree

of reliance the courts have displayed when referring to these opinions. In

this section, by reviewing a selected group of court decisions, an attempt

is made to measure this impact. The section is divided into: (1) ABA formal
and informal opinions; and (2) state, county, and city Bar opinions.

1. ABA Formal and Informal Opinions.—It appeared in the great
majority of cases surveyed that the courts have treated the ABA ethics
opinions with great deference.

a. United States Supreme Court cases

In McCoy v. Court of Appeals of Wisconsin, 136 the United States
Supreme Court dealt with the duty, or lack thereof, of a criminal defense

Los Angeles County Formal Ethics, Op. 410 (1983); Bar Ass'n of Nassau County, Op. 2-

89 (1989); New York County Bar Ass'n Comm. on Professional Ethics, Op. 528 (1964); New
York City Bar Ass'n Comm. on Professional Ethics, Op. 80-46 (1980)).

135. Gries Sports Enter., Inc. v. Cleveland Browns Football Co., Inc., Nos. 49184,

49197 (Ohio Ct. App., Cuyahoga County, April 25, 1985) (LEXIS, States library, Ohio file)

(citing ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1376 (1977);
Conn. Bar Ass'n, Informal Op. 82-4 (1981); Comm. on Ethics of the Md. State Bar Ass'n
Informal Op. 84-8 (1983), Comm. on Professional and Judicial Ethics of the State Bar of
Mich., Informal Op. CI-926 (1983)).

136. 486 U.S. 429 (1988).



24 INDIANA LAW REVIEW [Vol. 26:1

lawyer to file a frivolous appeal. The Court, citing the ABA Committee
on Ethics and Professional Responsibility, Informal Op. 955 (1955), decided

that "an attorney, whether appointed or paid, is therefore under an ethical

obligation to refuse to prosecute a frivolous appeal." 137 In doing so, the

Court relied on the ABA Standards for Criminal Justice (1980) followed
by ABA Informal Op. 955, which states that "like court-appointed lawyer,
private counsel, 'ethically, should not clog the courts with frivolous motions

or appeals/
" ,38 Then, in a "see also" the Court referred to a court of

appeals decision and to one of its own. 139 It might be inferred that the

preferential position given to the ethics opinion in the Court's list of

authorities reflects the deference the courts give to such opinions when

dealing with matters of ethics. On the other hand, in United Mine Workers
v. Illinois State Bar Ass'n, 140 the Court distinguished ABA Informal Op.
469 (1961) since it did not contemplate the situation at bar.

b. U.S. Courts of Appeals cases

The Eleventh Circuit upheld the correctness of a trust fund account

maintained by an attorney and applied the standards of ABA Committee
on Professional Ethics and Grievances, Formal Op. 348 (1982). 141 The United

States Court of Appeals for the District of Columbia declined to rule on

the issue, but found ABA informal opinions applicable in deciding on the
impropriety of an attorney charging double fees when working in a double

capacity as a broker and a lawyer. 142

Questions of attorneys ' fees provide an area where the courts interrelate

with the bar. In Stissi v. Interstate & Ocean Transport Co., 143 in dealing
with a division of fees, the Second Circuit followed the interpretation of

the Model Code of Professional Responsibility DR 2-107 (A) given by the
ABA. On the other hand, the Fourth Circuit rebuked the ABA for stating
in its Informal Op. 1521 (1986) that it was unethical for a lawyer not to

offer prospective clients an alternative to contingent fee arrangements. 144

In a case involving clandestine recording of conversations with witnesses,

the Eleventh Circuit recognized that, although this practice did not violate

137. Id. at 436.

138. Id. n.8.

139. Id.

140. 389 U.S. 217, 224 (1967).

141. Cone v. State Bar of Fla., 819 F.2d 1002, 1005 (11th Cir. 1987), cert, denied,

484 U.S. 917 (1987).

142. Leonard v. BHJK Corp., 469 F.2d 108, 113 (D.C. Cir. 1972) (citing ABA Comm.
on Ethics and Professional Responsibility, Informal Ops. 709 (1964) and 775 (1965)).

143. 814 F.2d 848, 851-52 (2d Cir. 1987) (citing ABA Comm. on Professional Ethics
and Grievances, Formal Op. 97 (1933) and No. 153 (1936)).

144. In re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637, 650-651 (4th
Cir. 1988) (en banc) (Murnaghan, J., concurring), aff'd, 491 U.S. 617 (1989).



1992] ETHICS OPINIONS OF THE BAR 25

any law, the ABA in its Formal Op. 337 (1974) had ruled this practice
unethical, and the court proceeded accordingly. 145

In dealing with cases involving government attorneys, the courts have

frequently turned to the ABA opinions for guidance. In its search for a
definition of what constitutes "substantial responsibility'' of a former gov-

ernment lawyer in matters of disqualification, the Ninth Circuit adopted

the definition given by the ABA in Formal Op. 342 (1975). 146
In a case entailing the duty of an attorney to release papers belonging

to a client, the Second Circuit applied ABA Informal Op. 1461 (1980),
which stated that the lawyer is required to release the papers on reasonable

conditions. 147

c. U.S. District Court cases

District Courts have not been remiss in relying on ABA opinions. In
cases involving government lawyers, the courts have referred to Formal Op.

342 (1975) as it has tempered the Model Code of Professional Responsibility

DR 5- 105(D) when applied to government officers. 148 Moreover, in Caracciolo
v. Ballard

r

,

149
this same opinion was applied in a case in which a former

government attorney's use of information adverse to the government was

at issue.
150

Frequently, the courts have applied Formal Op. 337 (1974), which

considers the recording of conversations of witnesses without their consent

unethical. 151 Recently, courts have begun to use old opinions to interpret

the new Model Rules, which were supposed to require less interpretation. 152

In one particular instance, a court relied on Informal Op. 828 (1965) to

censure an attorney who invited a witness to engage him as attorney to
represent the witness during a deposition. 153 In citing Informal Op. 885

145. Parrott v. Wilson, 707 F.2d 1262, 1271 (11th Cir. 1983), cert, denied, 464 U.S.

936 (1983).

146. Paul E. Iacono Structural Eng'r, Inc. v. Humphrey, 722 F.2d 435, 440 (9th Cir.

1983), cert, denied, 464 U.S. 851 (1983).

147. Pomerantz v. Schandler, 704 F.2d 681, 683 (2d Cir. 1983).

148. In re Grand Jury Proceedings, 700 F. Supp. 626, 630 (D.P.R. 1988), affd, 875

F.2d 927 (1989).

149. 687 F. Supp. 159 (E.D. Pa. 1988).

150. Id. at 160. See also United States v. Judge, 625 F. Supp. 901, 902 (D. Haw.

1986), affd, 855 F.2d 863 (9th Cir. 1988), cert, denied, 488 U.S. 959 (1988).

151. Haigh v. Matsushita Elec. Corp., 676 F. Supp. 1332, 1358 (E.D. Va. 1987). See

also H.L. Hayden Co. v. Siemens Medical Sys., Inc., 108 F.R.D. 686, 690 (S.D.N.Y. 1985).

152. Baker v. Leahy, 633 F. Supp. 763, 765 (E.D. Pa. 1985) (citing ABA Comm. on
Professional Ethics and Grievances, Formal Op. 342 (1975)).

153. Aspgren v. Montgomery Ward & Co., Inc., 47 Fair Empl. Prac. Cas. (BNA)
1438, 1442 (N.D. 111. 1984), clarified, 47 Fair Empl. Prac. Cas. (BNA) 1443 (1984), affd,
852 F.2d 1008 (7th Cir. 1988).



26 INDIANA LAW REVIEW [Vol. 26:1

(1965), one court forcefully stated that "courts have enforced these pre-

cepts." 154 Furthermore, when applying the Model Code of Professional
Responsibility DR5-102(A), the court cited ABA Formal Op. 339 (1975) to
hold that it "is not a per se rule which requires a literal application; rather,

its application depends 'upon the attending facts."' 155

d. Other federal court cases

Even the U.S. Court of Claims has cited ABA Informal Op. 480
(1961), in resolving a dispute regarding an attorney's use of a recording

device for court proceedings. 156

e. State court cases

As has been the case with federal courts, the state courts at different
levels have frequently cited ABA ethics opinions, recognizing their important
role, when dealing with questions of ethics.

Cases in which state courts cited ABA opinions with more frequency
than others are in the area of conflicts of interest. Conflict of interest

issues frequently burden the courts, not only through disciplinary proceed-

ings, but also in motions to disqualify. A group of cases dealing with this
issue follows, selected at random from among the many decided by state
courts all around the country.

An Alabama court followed ABA Formal Op. 330 (1972) clarifying
the meaning of the term "associate* ' in Model Code of Professional Re-

sponsibility DR5-105(D). 157 In the same vein, another court referred to an
ABA opinion for the definition of "matter." 158 One court relied on ABA
Formal Op. 342 (1975) for the definition of "substantial responsibility"

when delineating the duties of a lawyer in an imputed disqualification case. 159

Regarding the need of consent from both clients when there is a conflict,
a reference to an ABA opinion was made in Johnson v. Jones.m However,
an Arkansas court determined that some conflicts cannot be remedied with

consent, basing its holding on both a previous case and ABA Formal

154. INA Underwriters Ins. Co. v. Nalibotsky, 594 F. Supp 1199, 1205 (E.D. Pa.
1984) (quoting American Roller Co. v. Budinger, 513 F.2d 982, 984 (3rd Cir. 1985)).

155. Rubino v. City of Mount Vernon, No. 82 Civ. 3101 (RWS) (S.D.N.Y. Apr.

25, 1984) (LEXIS, Genfed library, Distfile). See also Freschi v. Grand Coal Venture, 564

F. Supp. 414, 416-17 (S.D.N.Y. 1983) (see attached subs, history).

156. Grimes v. United States, 4 CI. Ct. 205, 206 (1983).

157. Terry v. Alabama, 424 So. 2d 710, 713 (Ala. Crim. App. 1982).

158. Comm. for Wash.'s Riverfront Parks v. Thompson, 451 A.2d 1177, 1188 (D.C.
1982) (citing ABA Comm. on Professional Ethics and Grievances, Formal Op. 342 (1975)).

159. Colorado v. Anaya, 732 P.2d 1241, 1242 (Colo. Ct. App. 1987), rev'd en

banc, 764 P.2d 779 (Colo. 1988).

160. 652 P.2d 650, 653-54 (Idaho 1982).



1992] ETHICS OPINIONS OF THE BAR 27

Op. 192 (1939). 161 When a husband and wife both practice law, the court,
applying Formal Op. 340 (1975), held that there was not necessarily a

conflict when practicing in different law firms. 162 Moreover, when deciding

on the impropriety of joint representation in adoption proceedings, an Ohio

court followed a New York State Bar Association ethics opinion in con-
tradiction to a previous court decision. 163 A similar situation occurred in
Oklahoma. 164 Other areas are similarly represented by the use of ethics

opinions. One court's decision rested entirely on when it was proper for
an attorney to testify as a witness and remain in the case. 165 The same

situation took place in West v. Mississippi, 166

In a decision involving the retention of attorney's liens, two Justices

of the Arizona Supreme Court, after recognizing that the state bar "has

refrained from taking a position" on the matter, referred to ABA Informal
Op. 1461 (1980), and, together with opinions of other state bars, dissented

from the majority opinion finding that the attorney's conduct was ethical. 167

In stating that a corporate attorney who acts as a legal advisor for a
corporation must refrain from taking part in any controversies or factional

differences among stockholders, a California court relied on an ABA ethics
opinion as a basis for its decision. 168 A District of Columbia court cited
ABA Informal Op. 1273 (1973) to define neglect in a competence situation. 169

At times, courts attempt in vain to find an ABA ethics opinion. One
curious example was when a Florida court mentioned in a case that "[w]e

have found no opinion of this Court or other jurisdiction, or of the ABA
Committee on Ethics and Professional Responsibility which addresses the

issue. . . ."
,7°

161. City of Little Rock v. Cash, 644 S.W.2d 229, 235-36 (Ark. 1982) (quoting In

re A. & B., 209 A.2d 101, 102-03 (N.J. 1965)), cert, denied, 462 U.S. 1111 (1983).
162. Jones v. Jones, 369 S.E.2d 478, 479-80 (Ga. 1988).

163. In re Adoption of Infant Girl Banda, 559 N.E.2d 1373, 1382 (Ohio Ct. App.

1988) (citing N.Y. State Bar Ass'n Comm. on Professional Ethics, Op. 584 (1987)).
164. Oklahoma ex rel. Okla. Bar Ass'n v. Stubblefield, 766 P.2d 979, 982 (Okla.

1988) (citing ABA Comm. on Ethics and Professional Responsibility, Informal Op. 87-
1523 (1987)).

165. Andrea Dumon, Inc. v. Pittway Corp., 442 N.E.2d 574, 581 (111. App. Ct.

1982) (citing ABA Comm. on Professional Ethics and Grievances, Formal Op. 339 (1975)).
166. 519 So. 2d 418, 423-24 (Miss. 1988) (en banc) (citing ABA Comm. on Pro-

fessional Ethics and Grievances, Formal Op. 339 (1975)).

167. National Sales & Serv. Co., Inc. v. Superior Ct. of Maricopa County, 667
P.2d 738, 743 (Ariz. 1983) (en banc) (Cameron & Gordon, J.J., dissenting).

168. Hoiles v. Superior Ct. of Orange County, 204 Cal. Rptr. Ill, 115 (Cal. Ct.

App. 1984) (citing ABA Comm. on Professional Ethics and Grievances, Formal Op. 86
(1932)).

169. In re Franklin, 516 A.2d 171, 173 (D.C. 1986), cert, denied, 479 U.S. 1087

(1987).

170. Florida Bar v. Jackson, 494 So. 2d 206, 209 (Fla. 1986).



28 INDIANA LAW REVIEW [Vol. 26:1

On the duty to report any unprivileged knowledge of a lawyer's violation
of ethics, an Illinois court found "instructive" the position taken in ABA
Informal Op. 1210 (1972). 171 State court cases involving attorney's fees is

another area in which ABA ethics opinions are commonly cited. An Illinois
court relied on ABA Formal Op. 153 (1936) to determine "that a 'mere
recommendation is not a sufficient basis for a forwarding fee.'

" 172 In

addition, an Indiana court applied the "reasonableness" and "clearly ex-

cessive" tests of the Code of Professional Responsibility and the Rules of
Professional Conduct, as well as the ABA Informal Op. 86-1521 (1986),
in dealing with a contingent fee case. 173

Occasionally a state court has distinguished an ethics opinion. An Illinois
court, replying to a party's pretense to rely on an ABA opinion, rejected
his contention because his authority was "misplaced." 174

Just to cite an example of an ethics decision dealing with a government

lawyer, a Kentucky court, in deciding that Model Code of Professional
Responsibility DR 5- 195(D) does not apply to a government lawyer, said
that "[w]e believe this question has been dealt with in a formal opinion,

. .
." citing ABA Formal Op. 342 (1975). 175
Furthermore, addressing the validity of Interests on Lawyers Trust

Account (IOLTA), a Massachusetts court decided that an attorney may
ethically participate in those programs according to ABA Formal Op. 348
(1982).

176
Similarly, in Minnesota the state supreme court also relied on the

same ABA opinion, 177 as did the state supreme court of New Hampshire. 178
Finally, a dissenter from the majority decision that an attorney had the

duty to disclose the client's whereabouts expressed: "My position is supported
by the ABA Committee on Professional Ethics. . . ." 179

2. State, County and City Bar Opinions.—Although the courts have
relied primarily on ABA formal and informal opinions when dealing with

171. In re Himmel, 533 N.E.2d 790, 793 (111. 1988).

172. Phillips v. Joyce, 523 N.E.2d 933, 939 (111. App. Ct. 1988).

173. Lutz v. Belli, 516 N.E.2d 95, 103 (Ind. Ct. App. 1987) (Ratliff, C.J., con-

curring).

174. Petrillo v. Syntex Lab., 499 N.E.2d 952, 964 (111. App. Ct. 1986) (citing ABA
Comm. on Ethics and Professional Responsibility, Informal Op. 892 (1965)), appeal denied,
505 N.E.2d 361 (111. 1987), cert, denied, 483 U.S. 1007 (1987).

175. Summit v. Mudd, 679 S.W.2d 225, 226 (Ky. 1984).

176. Petition by the Mass. Bar Ass'n and the Boston Bar Ass'n, 478 N.E.2d 715,

718 (Mass. 1985).

177. In re Petition of the Minn. State Bar Ass'n, 332 N.W.2d 151, 158 (Minn.

1982).

178. Petition of N.H. Bar Ass'n, 453 A.2d 1258, 1261 (N.H. 1982).

179. Pennsylvania v. Maguigan, 470 A.2d 611, 633-34 (Pa. Super. Ct. 1983) (Mon-

temurg, J., dissenting) (citing ABA Comm. on Professional Ethics and Grievances, Formal
Op. 155 (1936)), rev'd, 511 A.2d 1327 (Pa. 1986).



1992] ETHICS OPINIONS OF THE BAR 29

questions of ethics, they also take into consideration the opinions issued

by state, county, and city bar associations. When courts have addressed
these types of opinions, the opinions were given the same deferential

treatment as their counterparts from the ABA.

a. United States Supreme Court cases

Of the fourteen United States Supreme Court cases citing ethics opinions,
six involved, in one way or another, state, county, and city opinions. In

Goldfarb v. Virginia State Bar™ the Court, after analyzing two Virginia
ethics opinions, concluded that the minimum fee schedules approved by
the bar were mandatory, and as such, were within the reach of the Sherman

Act. On the other hand, in Evans v. Jeff D., m the Court held that it was
unethical for defense lawyers to request fee waivers in exchange for relief

on the merits of plaintiffs, despite what the Fees Act might say. The Court

in Evans quoted two New York City ethics opinions to reinforce its holding. 182

In Bates v. State Bar of Arizona, 182 the Court referred to the Preamble

of New York County Bar Ass'n Ethics Op. No. 47 to introduce a historical
element in the reasoning of the case. In Ohralik v. Ohio State Bar Ass'n, 184

a solicitation case, the same situation was repeated. A New York City
opinion was cited in Local No. 391 v. Terry185 to trace the history of the

prohibition of simultaneous representation. In Mallard v. United States

District Court, 186 the Court adopted the principle establishing an attorney's

obligation to accept court appointments, basing its reasoning on one county

and two city ethics opinions.

b. U.S. courts of appeals cases

The federal courts of appeals have also followed the trend; of the

eighty cases citing ethics opinions, twenty-eight included opinions by the

180. 421 U.S. 773 (1975); see supra note 93.

181. 475 U.S. 717, 728 (1986).

182. Id. The Court cites to Association of the Bar of the City of N.Y. Ops. 80-

94 (1981) and 82-80 (1985). Also cited were D.C. Bar Ethics Op. 147 (1985), Ga. Bar

Ethics Op. 39 (1984) (rejecting the reasoning of the N.Y. City Op. 80-94), and Grievance

Comm'n of Board of Overseers of the Bar of Me. Op. 17 (1983).
183. 433 U.S. 350, 371 (1977) (citing Drinker, supra note 8, at 210-11).

184. 436 U.S. 447, 460 (1978) (citing Drinker, supra note 8, at 210-211).

185. 494 U.S. 558, 586 (1990) (Kennedy, O'Connor, & Scalia, J.J., dissenting) (citing
Association of the Bar of the City of N.Y. Ethics Op. 662 (1944) (citing Drinker, supra

note 8, at 103).

186. 490 U.S. 296, 313 (1989) (Stevens, J., dissenting) (citing Chicago 33, N.Y.

City 436 & 587; N.Y. County 338 & 371; Michigan 127) (citing Drinker, supra note 8,
at 62-63).



30 INDIANA LAW REVIEW [Vol. 26:1

ethics committees of state, county, and city bar associations. The District

of Columbia Circuit referred to this type of opinion in three separate cases.

In United States v. Heldt, 181 the court referred to an Oregon ethics opinion,

combined with statutory citations, to support its decision that it was improper

for a prosecutor to participate in a case when he had a pecuniary interest

in the outcome. In Roller v. Richardson-Merrill, Inc.,m the court cited an
Oregon opinion to reinforce a quotation from an ABA opinion on the
prohibition of recording conversations without consent of all parties involved.

In Moore v. National Ass'n of Securities Dealers, 199 after conceding that
it could not draw a uniform rule on fee negotiations from case law, the

court recognized the conflict of interest problem and followed one state

and one city ethics opinion. Furthermore, in Cluett, Peabody & Co. v.
CPC Acquisition Co., 190 which involved a question of billing practices, the
court referred to a county bar opinion to support the crucial statement of

the case: "Billing non-attorney time at an attorney's contractual rate, without

identifying it as non-attorney time is fraudulent." Finally, in In re A.H.

Robins Co., 191 a case involving conflicts of interest, the court followed an

ABA informal opinion, reinforced by three state opinions, in order to hold
that "it is universally declared that the type of counselor in the case at

bar represented the insured and not the insurer.'

'

c. U.S. district court cases

Of the 162 opinions cited in eighty-six district court cases, ninety-one
opinions were issued by state, county, or city bars. In United States v.

Central Adjustment Bureau, Inc., 192 the court considered whether it was

unethical for an attorney to permit a collection agency to prepare and mail

dunning letters using the attorney's stationery. In addressing this issue, the

court mapped out a set of standards based solely on a string of ethics

187. 668 F.2d 1238, 1275 (D.C. Cir. 1981) (citing Or. State Bar Comm. on Legal
Ethics Op. 386 (1978)), cert, denied, 456 U.S. 926 (1982).

188. 737 F.2d 1038, 1059-60 (D.C. Cir. 1984) (citing N.Y. Bar Ass'n Comm. on
Professional Ethics Op. 328 (1974); ABA Comm. on Professional Ethics and Grievances,
Formal Op. 337 (1974)), cert, granted, 469 U.S. 915 (1984), and vacated, All U.S. 424

(1985).

189. 762 F.2d 1093, 1103 (D.C. Cir. 1985) (citing Ass'n of the Bar of the City of

N.Y. Comm. on Professional & Judicial Ethics Op. 80-94 (1981); D.C. Bar Legal Ethics
Comm. Op. 147 (1985)).

190. 863 F.2d 251, 254 (2d Cir. 1988) (citing L. A. County Bar Ass'n Ethics Comm.
Formal Op. 391 (1981)).

191. 880 F.2d 709, 751 (4th Cir.) (citing ABA Comm. on Ethics and Professional
Responsibility, Informal Op. 1476 (1981); Conn. Informal Op. 83-15 (1982); Del. Op.

1981-1 (1981); Mich. Op. CI-866 (1983)), cert, denied, 493 U.S. 759 (1989).

192. 667 F. Supp. 370 (N.D. Tex. 1986).



1992] ETHICS OPINIONS OF THE BAR 31

opinions. 193 A New York district court, after stating that the business of
the court is to dispose of litigation and not to act as a general overseer

of the ethics of those who practice before it, felt compelled to act on a
question of ethics where the case involved a communication with an adverse

party's employees. 194 For the disposition of the matter, the court referred

to a series of state and city opinions, which, combined with a few cases

and an ABA opinion, allowed the court to establish a set of guidelines. 195
In deciding on the disposition of clients' documents in an attorney's files,

another court applied two state ethics opinions. 196 In an attorney's lien case,

a Mississippi court relied on one state and one city opinion to define which

documents belonged to the attorney. 197 Finally, a Florida district court was

faced with a government lawyer conflict in a class action. The court,

recognizing that no applicable authority existed in the circuit, decided the

case on the basis of a Florida ethics opinion and resisted plaintiffs counsel's

effort to distinguish the ethics opinion. 198

d. State court cases

It should not be a surprise that state courts tend to favor not only

local ethics opinions, but also those of other states when deciding cases

affecting the legal profession. Of the 877 ethics opinions that state courts
have cited in 460 cases, 491 came from state, county, and city bar asso-

193. Id. at 380-81 (citing Tex. Ethics Ops. 160 & 161 (1957); Phila. Ethics Op. 61-
8 (1961); Ass'n of the Bar of the City of N.Y. Ethics Ops. 153 (1930) & 866 (1965);
Alleghany County Ethics Ops. 1962-1 & 1963-2; Wis. Bar Ethics Op. 11 (1961); N.C.
Ethics Op. 487 (1985); Wash. Ethics Op. 84 (1960); N.Y. County Bar Ass'n Ethics Op.

300 (1932); in addition to ABA Comm. on Professional Ethics and Grievances, Formal
Op. 253 (1943)).

194. Suggs v. Capital Cities ABC, Inc., 52 Fair Empl. Prac. Cas. (BNA) 1842,
1844 (S.D.N.Y. 1990).

195. Id. (citing D.C. Bar Comm. on Legal Ethics Op. 129 (1983); Ass'n of the
Bar of the City of N.Y. Comm. on Professional Ethics Op. 80-46 (1980); Mass. Bar
Ass'n Comm. on Professional Ethics Op. 82-7 (1982); Mich. Bar Ass'n Comm. on
Professional & Judicial Ethics Informal Op. 535 (1980); 111. State Bar Ass'n Comm. on
Professional Responsibility, Op. 85-12 (1986); San Diego Bar Ass'n Ethics Comm. Op.
1984-5 (1984); L. A. County Bar Ass'n Formal Op. 410 (1983); Tenn. Bar Ass'n Op.

83-F-46 (1985); Tex. State Professional Ethics Comm. Op. 461 (1988); Md. Bar Ass'n
Op. 83-4 (1982); Ohio Bar Ass'n Op. 81-5 (1981)).

196. Resolution Trust Corp. v. H— , P.C., 128 F.R.D. 647, 648-49 (N.D. Tex.
1989) (citing Professional Ethics Comm. State Bar of Tex., Ethics Op. 395 (1980); Iowa
State Bar Ethics Comm. Op. 87-21 (1988)).

197. Federal Land Bank v. Federal Intermediate Credit Bank, 127 F.R.D. 473, 476-

79 (S.D. Miss. 1989) (citing Miss. State Bar Advisory Ethics Op. 144 (1988); San Diego

Bar Ass'n Ethics Op. 1977-3 (1978)).

198. Norton v. Tallahassee Memorial Hosp., 511 F. Supp. 777, 780 (N.D. Fla.

1981) (quoting Professional Ethics Comm. of the Fla. Bar Op. 74-8 (1974)).



32 INDIANA LAW REVIEW [Vol. 26:1

ciations. (See Appendix.) The reason for this favoritism may be that the
local approach is closer to home than the positions taken by the national
leadership, although these have not been totally ignored.

The New Jersey Supreme Court, in upholding sanctions against a lawyer
facing disciplinary action, applied the principle that "[t]he fiduciary obli-

gation of a lawyer applies to persons who, although not strictly clients, he

has or should have reason to believe rely on him." 199 This principle was

developed through a series of local ethics opinions. Distancing itself from

the directives of three New York State Bar Association Ethics Committee
opinions, a New York court refused to disqualify a part time Assistant
County Attorney from representing defendants in criminal proceedings.200

According to the court, absent compelling reasons, a court should not

interfere with the right of a criminal defendant to choose his own counsel.
The three New York ethics opinions not followed pointed to the disqual-
ification.

201 A Massachusetts court, in deciding upon a waiver of the attorney-
client privilege, adopted the principle established by a state ethics opinion

which maintains that the attorney-client privilege continues despite the fact

that the confidential information has become notorious. 202 One Delaware
court did not hesitate to go outside the state for guidance in deciding that

former employees are not within the scope of the rule against ex-parte

communications. 203 Finally, relying exclusively on an opinion issued by its

own state bar, an Ohio appeals court held that it would be unethical for
an attorney to act both as an attorney and as a real estate broker in one

transaction, and to charge one fee as an attorney and another as a broker.204

It is obvious from the preceding quantitative and qualitative analyses

that for many years, courts have seriously considered the bar's ethics opinions
when dealing with ethical matters. Courts have not only consistently referred

199. In re Gavel, 125 A.2d 696, 705 (N.J. 1956) (citing N.Y. County Bar Ass'n

Ethics Op. 320 (1933); Ass'n of the Bar of the City of N.Y. Ops. 343 (1935) & 682
(1945). See also Mich. 150 (1952); Miss. 29 (quoting Drinker, supra note 8, at 92).

200. Moxham v. Hannigan, 455 N.Y.S.2d 424 (N.Y. App. Div. 1982).
201. Id. at 427 (citing N.Y. State Bar Ass'n Ethics Comm. Ops. 367 (1974), 278

(1973) & 257 (1972)).
202. Commonwealth v. Goldman, 480 N.E.2d 1023, 1028-30 (Mass.) (citing Mass.

Bar Ass'n Comm. on Professional Ethics, Op. 84-3 (1984)), cert, denied, 474 U.S. 906
(1985). The court also cited opinions 75-7 (1975), 76-12 (1976), and 77-1 (1977) of the

same state bar committee. Id. Cal. Standing Comm. on Professional Responsibility &
Conduct Op. 1980-52 (1980), Bar Ass'n of Greater Cleveland Professional Ethics Comm.,
Op. 150 (1983), and Vt. Bar Ass'n Comm. on Professional Responsibility Op. 83-6 (1983)
were also cited. Id.

203. DiOssi v. Edison, 583 A.2d 1343, 1344 (Del. Super. Ct. 1990) (citing Colo.

Ethics Op. 69 (Rev.) (1987); Fla. Bar Professional Ethics Comm., Op. 88-14 (1989);
Alaska Ethics Op. 88-3 (1988); 111. Ethics Op. 85-12 (1986)).

204. Ollick v. Rice, 476 N.E.2d 1062, 1069 (Ohio Ct. App. 1984) (citing Ohio State

Bar Ass'n Comm. on Legal Ethics and Professional Conduct, Op. 9 (1950)).



1992] ETHICS OPINIONS OF THE BAR 33

to these opinions at all times, but also have treated them with deference.

This reliance suggests that ethics opinions are an important component of

the ethics laws to the courts.

D. Review of the Literature

In spite of the relevancy of ethics opinions, legal scholars have given

them little or no attention. According to one of the few commentators

who has considered this issue: "Few scholars have criticized individual [ABA
Committee on Ethics and Professional Responsibility] opinions and no one

has evaluated the Committee's work as a whole."205 In fact, with minor

exceptions, those few who have undertaken the task of studying these
opinions have taken a critical view.

The most ambitious, although isolated effort, that has emerged from

legal scholars has been the article authored by Professors Finman and

Schneyer in 1981. These authors expressed a very negative approach in

criticizing the ABA ethics opinions in their article. Although they concluded
that these opinions have played a significant role in governing lawyers

through the interpretation of the ethical norms, they believed that the ABA
needed to reform its opinions by correcting the recurrent flaws in the

analyses and by improving their poor record in reaching correct decisions.

The authors also cautioned the Bar that if no reforms were instituted, or

if reforms proved unavailing, the entire enterprise should be abandoned.206

The aforementioned conclusion was reached after the authors analyzed

a selected group of ABA ethics opinions. Throughout their study they
viewed the opinions as interpretations of ethical norms.207 Despite the authors'

concession that the opinions have great impact in the determination of the

ethical conduct of lawyers,208 they reached the conclusion that "these opinions

are seriously flawed, so much so that their overall influence may well be
unfortunate."209 Professors Finman and Schneyer centered their criticism

on what they believe is the deficient mechanism used by the ABA in
preparing its opinions. First, because of the opinions' importance in reg-

ulating lawyers' conduct, they assert that ABA procedures should be ad-
versarial, and not the product of mere reflections of individual members.210

Second, they suggested that while alternative sources of guidance are avail-

able, such as scholarly works and consultation with colleagues, ethics op-

205. Ted Finman & Theodore Schneyer, The Role of Bar Association Ethics Opinions
in Regulating Lawyer Conduct: A Critique of the Work of the ABA Committee on Ethics
and Professional Responsibility, 29 UCLA L. Rev. 67, 72 (1981) (footnote omitted).

206. Id. at 167

207. Id. at 69.

208. Id. at 70.

209. Id. at 72.

210. Id. at 73.



34 INDIANA LAW REVIEW [Vol. 26:1

inions play a more significant role in guidance and offer such advantages

as expediency, authority and total confidentiality. 211 Third, the authors

preferred the opinions identify "a tenable, rule-based rationale" and "rel-

evant authorities," as well as careful analysis of "problems of interpretive

choice* ' and the achievement of "clarity."212 They employed these standards

when they tested the opinions, and thus, their severe criticism resulted.
Finally, the authors complained of the lack of an adequate review process

applicable to the ABA ethics opinions, because the opinions cannot be
appealed, although they are occasionally reconsidered by the Committee

itself.
213 Notwithstanding the negative approach used by Professors Finman

and Schneyer, they predicted that the influence of the ethics opinions of

the ABA was not likely to diminish in the future.214
In 1986, in his hornbook on legal ethics, Professor Wolfram expressed

additional charges against the ABA ethics opinions. Wolfram asserted: (1)
the quality of these opinions has been "uneven," reflecting the personal

interests of the committee members; (2) these opinions are dogmatic, and

fail to recognize apparent areas of doubt or ambiguity; and (3) they were

more in the nature of "strong statement rather than flawless reasoning."215

Professors who teach courses in legal ethics have also neglected this
topic. Although all of them have quoted ABA ethics opinions in their
casebooks, the great majority of them have not included in their texts any

explanation on what the ethics opinions of the bar are, their value, or

their influence.216

One notable exception in this group is Professor Geoffrey C. Hazard,
Jr. In his text, Hazard explains the meaning of the ethics opinions of the

bar at different levels. He also comments that although the courts' decisions
are the "only truly authoritative interpretation of the ethics rule," ethics

opinions provide guidance as well as a good defense to attorneys facing

disciplinary charges.217

211. Id. at 78-79.

212. Id. at 95.

213. Id. at 149-50.

214. Id. at 167.

215. Charles Wolfram, Modern Legal Ethics 66 (1986). Professor Wolfram's
hornbook provides the most comprehensive and in-depth analysis of the law of ethics

ever published.

216. E.g., Andrew L. Kaufman, Problems in Professional Responsibility (1984);
Thomas D. Morgan & Ronald D. Rotonda, Problems and Materials on Professional
Responsibility (5th ed. 1991); L. Roy Patterson, Legal Ethics: The Law of Professional
Responsibility (2d ed. 1987); Maynard E. Pirsig & Kenneth F. Kirwin, Cases and
Materials on Professional Responsibility (4th ed. 1984); Deborah L. Rhode & David
Luban, Legal Ethics (1992); Mortimer D. Schwartz & Ronald C. Wydick, Problems
in Legal Ethics (1988); Thomas L. Shaffer, American Legal Ethics: Text, Readings,
and Discussion Topics (1985).

217. Geoffrey C. Hazard, Jr. & Susan P. Koniak, The Law and Ethics of
Lawyering 14-15 (1990).



1992] ETHICS OPINIONS OF THE BAR 35

The bar has predictably shown an increased awareness of the impact

of their ethics opinions. Two recent events attest to this awareness. On
February 8, 1991, at the National Organization of Bar Counsels annual

meeting in Seattle, a review was made of some of the different bodies
which issue ethics opinions. This recognized the increasing contribution of

this service to the disciplinary process.218 Concurrently, on June 26, 1991,

the American Bar Association Task Force on Law Schools and the Pro-
fession: Narrowing the Gap issued a tentative draft of its Statement of
Fundamental Skills and Professional Values in which the ethics opinions

of the bar were identified as primary sources for the interpretation of the

rules of professional conduct — second only to the interpretation given by
the courts. 219

V. Conclusion

In spite of their nonbinding character, the bar's ethics opinions are

frequently referred to by the courts. The courts treat these opinions with

great deference, and, in fact, attribute to them a degree of attention similar

to that usually found in the treatment of judicial opinions. In discussing

the ethics opinions of the bar, courts follow, distinguish, criticize, parallel,

and harmonize them just as courts do with judicial opinions. The most

popular application of the ethics opinions is for clarification and interpre-

tation of the ethical codes. However, their authority has occasionally been

extended beyond this. Even when the ethics opinions were relied upon in

conjunction with more binding authorities, such as case law, the courts

assigned them a prominent, and not a secondary, role to add strength to

the argument. Moreover, upon reviewing the quantitative and qualitative

analyses and the opinions of legal scholars and the practicing bar, a consensus

emerges on the relevance of ethics opinions for self-governance of attorneys.

218. National Organization of Bar Counsels, Complaint Containment: The Advisory

Legal Ethics Opinion Role in the Disciplinary System, 1 (Feb. 8, 1991) (unpublished).

The mission of these bodies was identified as: "to assist lawyers in the adherence to their

professional codes or rules and to prevent the occurrence of misconduct through the use

of Ethics Hotlines and written advisory opinions." For details on the program, see Laws.

Man. on Prof. Conduct (ABA/BNA) Vol. VII, No. 2 at 36-37 (Feb. 27, 1991).
219. Statement of Fundamental Lawyering Skills and Professional Values 13-14 (Tent.

Draft June 26, 1991). This report identifies as the primary sources of ethical rules: (a)

the rules of professional conduct which have been formally adopted in the jurisdiction

where the lawyer is practicing; (b) the interpretation of the applicable rules of professional

conduct by the courts of the jurisdiction, the state or local bar associations, and other

entities that are authorized to issue binding or persuasive interpretations of ethical rules;

(c) model rules of ethics that have not been adopted in the jurisdiction; (d) constitutional,

statutory, or common law principles related to the ethical obligations of the lawyer; (e)
general aspects of ethical philosophy; and (f) the lawyer's sense of morality. Id. This

report has been widely circulated as a public service of West Pub. Co. and is generating

a wide variety of actions from both the bar and the academic community.



36 INDIANA LAW REVIEW [Vol. 26:1

Therefore, it is fair to conclude that the contribution of the ethics opinions

of the bar in the decision making process of the courts, and in resolving

ethical issues, is an important one and not an exercise in futility as some

may otherwise believe.
Nonetheless, some critics urge that there is a need for improvement in

the procedure for managing ethics opinions, and in the quality and format

of drafting as well. Suggested changes in procedure include: (1) making

the process more adversarial, (2) creating a review process, and (3) improving

the quality of the opinions. However, based on this research and my
personal experience, injecting more antagonism in the advisory process and

making the opinions reviewable will not only be counterproductive, but

futile. There is much antagonism and delay in the judicial process already
and more is not needed. Even still, there is ample room for improvements
in the drafting of opinions. As is the case with judicial opinions, there

are, and always will be, good and bad ethics opinions. This does not mean
that efforts to improve opinions should not be attempted.

If, as it appears, ethics opinions of the bar are treated as an integral

part of the law of ethics in lawyering, then the opinions must meet the

highest standards of draftsmanship. Moreover, if the three major components

of the legal community (legal educators, courts and bar) must deal with

these opinions in one way or another, it is the responsibility of all parties

to strive for their improvement. Legal educators should stress the importance

of the ethics opinions not only by alerting the students to their existence

and relevancy, but by exercising a more active role in constructive criticism

of the opinions through legal scholarship. Courts should strive to achieve

uniformity in utilizing ethics opinions, as some courts currently rely on

them more than others. The courts should also contribute to the improvement

of the quality of the opinions by taking a more critical view of the opinions

when an occasion is presented.

The most important role is that of the bar. The drafters of ethics

opinions—both the dedicated attorneys and the bar counsels—must be
conscious of their professional responsibility and the transcendent value of

their mission. They must be fully aware that every ethics opinion they

draft, regardless of the jurisdiction (national, state, county or city) may
eventually become an important part of the great repository of the law of

ethics.

In addition, due to the transcendent role assigned to the opinions by

the courts, the ethics committees should engage in thorough research of

present and past ethics opinions of the bar together with analysis of pertinent

present and past judicial decisions that have dealt with the opinions. The

ethics committee should also consider the works of legal scholars. While

ethics committees should not engage in social engineering or lawmaking,

at the same time they should not ignore societal needs, clamors and

perceptions.



1992] ETHICS OPINIONS OF THE BAR 37

Finally, the most important lesson of this study is that the ethics

opinions of the bar provide more than a simple interpretation of ethical

norms. The ethics opinions constitute the voice of one of the most influential

segments of our society: the practicing bar. This voice, as proven here,

does not fall on deaf ears. In matters of ethics, when the bar speaks, the

courts listen.



38 INDIANA LAW REVIEW [Vol. 26:1

Appendix

Bar Associations' Ethics Opinions Cited by State Courts

STATES* CASES ABAF ABAI
STATE COUNTY
BARS BARS

CITY
BARS TOTAL

Alaska (1967-87) (3) 3 3

Alas. (1964-90) (9) 5 1 4' l
2

11

Ariz. (1968-90) (21) 4 4 323 44 44

Ark. (1968-90) (4) 7 1 V l6 11

Cal. (1950-79) (ID 9 5 V 28 17

Colo. (1971-89) (9) 7 2* 9

Conn. (1964-87) (5) 5 310 1" 9

Del. (1984-90) (3) 1 712 8

D.C. (1982-91) (6) 1 1 6" 8

Fla. (1967-86) (23) 5 4 27'
4 36

Ga. (1987) 0) 1 1

Haw. (1969) (1) 1 1

Idaho (1946-82) (4) 2 2
1S 4

111. (1977-88) (21) 18 2 10" 30

Ind. (1960-90) (6) 4 2 2'
7

8

Iowa (1972-89) (5) 2 3 5

Kan. (1958-82) (14) 7 4 018 1" 2» 23

* Dates refer to period of time when opinions were cited. State-like bars, e.g.

D.C. and Virgin Islands, are included here.

1. Alaska (4)

2. N.Y. (1)
3. Ariz. (29), La. (1), N.C. (1), Tex. (1)
4. N.Y. (3), Chicago (1)
5. Mich. (2)

6. N.Y. (1)
7. N.Y. (1)
8. N.Y. (2)

9. Colo. (2)

10. Conn. (3)
11. N.Y. (1)
12. Alaska (1), Colo. (1), Conn. (1), Del. (1), Fla. (1), 111. (1), Tex. (1)

13. D.C. (5), Md. (1).
14. Fla. (25), Va. (2)

15. Idaho (2)

16. Ky. (1), 111. (8), Va. (1)

17. Ind. (2)

18. Kan. (7), Ky. (1), Mich. (1)

19. N.Y. (1)

20. N.Y. (2)



1992] ETHICS OPINIONS OF THE BAR 39

Ky. (1951-89) (4) 3 5
21

l
22 9

La. (1968-91) (7) 7 2 3* 12

Me. (1989) (1) 1 1

Md. (1965-91) (15) 13 8 724 2* 2* 32

Mass. (1982-89) (12) 16 3 17
27

I" !» 38

Mich. (1972-89) (11) 13 4 830 l 31 26

Minn. (1951-88) (7) 6 1 l
32 2" 10

Miss. (1978-88) (5) 3 2* 5

Mo. (1958-81) (2) 2 1 535 8

Mont. (-) (0)

Neb. (1968-88) (5) 4 2* 6

Nev. (1971-89) (2) 2 2
37 4

N.H. (1971-85) (4) 1 4 2* 5W 12

N.J. (1940-86) (37) 48 5 16
40 1641 3242 117

N.M. (1983-89) (2) 1 1 243 144 5

N.Y. (1948-90) (73) 26 13 5745 20* 34
47 150

N.C. (1979-87) (3) 2 2 248 6

21. Conn. (1), Fla. (1), Ky. (3)

22. N.Y. (1)

23. La. (2), Wis. (1)

24. Md. (7)
25. N.Y. (2)

26. N.Y. (2)

27. Cal. (1), Mass. (13), Mich. (1); Va. (1), Vt. (1)

28. N.Y. (1)

29. N.Y. (1)

30. Mich. (8)

31. N.Y. (1)

32. N.Y. (1)

33. N.Y. (2)

34. Miss. (2)

35. Ala. (1), Ariz (1), N.Y. (1), Tex. (1), Va. (1)

36. La. (2)

37. N.Y. (2)

38. Mich. (1), N.H. (1)
39. Chicago (1); N.Y. (4)

40. Mich. (7); Miss. (1), Mo. (4), N.J. (3), Wash. (1)
41. N.Y. (16)
42. N.Y. (32)

43. Mo. (1), Wis. (1)
44. N.Y. (1)
45. Ala. (1), Alaska (2), Cal. (1), Colo. (1), D.C. (1), Ga. (1), Idaho (1), 111. (1),

Me. (1), Mass. (2), Mich. (4), N.Y. (40), Wash. (1)
46. La. (1), N.Y. (16), Nassau (3)

47. Brooklyn (1), Chicago (1), Milwaukee (1), N.Y. (31)

48. N.C. (2)



40 INDIANA LAW REVIEW [Vol. 26:1

N.D. (1976-80) (2) 1 1 2

Ohio (1964-89) (9) 6 5 10*9 21

Okla. (1973-88) (8) 2 1 7» 35 ' 13

Ore. (1958-88) (43) 11 4 42" 5s g54 70

Pa. (1969-84) (13) 8 8 16

R.I. (1970-83) (2) 2 2

S.C. (1976-88) (3) 4 1 5

S.D. (1988) (1) 1 1

Tenn. (1965-87) (5) 2 1 1" 2
s6

I
s7 7

Tex. (1967-90) (15) 1 1 12
58 359

l
60 18

Utah (1983) (1) 1 1

Vt. (-) (0)

Va. (1986-89) (2) 1 1 2

V.I. (-) (0)

Wash. (1963-89) (15) 13 3 8" 762 5« 36

W. Va. (1970-90) (4) 2 2" 4

Wis. (1963-90) (9) 3 1 6
65 10

Wyo. (-) (0)

TOTAL 468 283 103 322 65 104 877

49. Conn. (1), Md. (1), Mich. (1), N.Y. (1), Ohio (6)
50. Mich. (1), Okla. (6)

51. N.Y. (3)

52. Or. (42)

53. N.Y. (5)

54. N.Y. (8)

55. Mich. (1)

56. N.Y. (2)

57. N.Y. (1)

58. Tex. (12)

59. N.Y. (3)

60. N.Y. (1)

61. Ariz. (1), Idaho (1), Mich. (1), Wash. (5)
62. La. (2), N.Y. (5)

63. N.Y. (5)
64. Va. (1), W. Va. (1)
65. Wis. (6).