In Re Creation of the Office of Ethics Counsel and Amendments to Rules 1.6 and 8.3 of the Arkansas Rules of Professional Conduct

2021 Ark. 169

• Court: Supreme Court of Arkansas
• Decided: September 30, 2021
• Status: Published

Opinion

Reason: I attest to the accuracy and integrity of this document Date: 2022.06.09 Cite as 2021 Ark. 169 12:52:56 -05'00' Adobe Acrobat SUPREME COURT OF ARKANSAS version: 2022.001.20117 Opinion Delivered: September 30, 2021

IN RE CREATION OF THE OFFICE OF ETHICS COUNSEL AND AMENDMENTS TO RULES 1.6 AND 8.3 OF THE ARKANSAS RULES OF PROFESSIONAL CONDUCT

PER CURIAM

Pursuant to Amendment 28 to the Arkansas Constitution and this court’s inherent

authority to regulate the practice of law, we hereby establish the Office of Ethics Counsel

(OEC) and adopt rules for its operation as set out below. Additionally, we adopt changes to

Rules 1.6 and 8.3 of the Arkansas Rules of Professional Conduct. The OEC, its rules, and

the amendments to the Arkansas Rules of Professional Conduct shall be effective

immediately.

RULES OF THE OFFICE OF ETHICS COUNSEL

Rule 1. SCOPE OF THE PROGRAM

A. Establishment. The Court hereby creates the Arkansas Supreme Court Office of

Ethics Counsel (OEC) which may provide advice to Arkansas attorneys regarding legal

ethics issues and interpretations of the Arkansas Rules of Professional Conduct.

B. Purpose. The OEC has multiple purposes, including: (1) To aid attorneys who voluntarily seek to maintain the highest ethical standards

in their provision of legal services;

(2) To protect the interests of clients, litigants, and the courts, who might be

harmed by unethical actions; and

(3) To foster public confidence in the Arkansas Bar’s provision of ethical legal

services.

Rule 2. FUNDING AND ADMINISTRATION

A. Compensation and expenses. The Arkansas Supreme Court shall provide funds for

staff compensation and operational expenses of the office with funds available to the court

from attorney license fees and any other available and appropriate court revenue.

B. Supervision. The Supreme Court shall provide oversight of the OEC through an

appointed liaison justice.

Rule 3. OEC DIRECTOR AND ADDITIONAL PERSONNEL

A. Hiring and qualifications. The Arkansas Supreme Court shall hire the OEC director

(Ethics Counsel), and the director will serve at the pleasure of the court. The director shall

be an attorney in good standing who is licensed in Arkansas.

B. Additional staff. The Court may from time-to-time authorize and fund additional

staff for the OEC. The Arkansas Supreme Court shall hire any additional employees whom

it deems necessary. Office staff will be supervised by Ethics Counsel.

Rule 4. SERVICES TO BE PROVIDED

A. Format. The OEC may provide the inquiring attorney with informal ethics advice,

guidance, or opinion, in oral or written form, on areas of attorney ethical conduct and

2 interpretation of the Arkansas Rules of Professional Conduct for Attorneys at Law within

the scope set in these Rules.

B. Helpline. The OEC shall provide a telephone Ethics Helpline on basic ethics and

Rules questions for a quicker verbal or electronic response than can be given by a more

detailed written response.

C. Advertising. Ethics Counsel may review an inquiring attorney’s proposed

advertising, marketing, and solicitation materials and offer informal guidance and opinion

on compliance of the materials with the Arkansas Rules of Professional Conduct.

D. Fees. Access to the services of the OEC shall be free to attorneys actively licensed

and in good standing in Arkansas and those admitted pro hac vice by rule to practice in the

courts of this state.

Rule 5. REQUESTS FOR ADVICE OR OPINIONS

A. Request form. Ethics Counsel may require that any request for an informal advisory

opinion be submitted in writing on a form provided by the OEC.

B. Denial of request. Ethics Counsel may decline to give or defer giving an informal

advisory opinion where (1) the requester seeks to be anonymous by not providing a correct

name and Arkansas Bar Number or (2) the requester declines to provide what Ethics

Counsel determines is necessary information to be able to appropriately respond to the

request. Ethics Counsel may request additional information or decline to accept the request

if the request is for an opinion that is outside the scope of OEC services. Within three

business days of the receipt of a request, Ethics Counsel shall notify the requesting attorney

3 of the estimated time for an informal opinion to be issued. Informal opinions ordinarily shall

be rendered within thirty days of the request’s acceptance.

C. Clarification. If an attorney seeks clarification, such clarification must be requested

from OEC within five days of the opinion’s issuance. Thereafter, such written opinions shall

be deemed final and subject to publication as set forth in Rule 8.

D. Attorney obligations. Oral and written requests to the OEC for an informal opinion

or advice shall include a statement that the inquiring attorney and the subject matter of the

request are not the subject of a pending disciplinary proceeding against the inquiring

attorney or any other attorney in the law firm in which the requesting attorney may practice.

E. Non-attorneys. The OEC shall not provide any opinion or advice to a non-

attorney.

Rule 6. LIMITATIONS ON THE TYPE OF ADVICE OR OPINIONS GIVEN

A. Legal issues. Ethics Counsel shall not provide opinions or advice involving solely

legal questions, interpretations of law, or related issues.

B. Past conduct. Advice and opinions generally will address only future conduct of the

inquiring attorney or future conduct of an attorney with whom the inquiring attorney

practices in a law firm relationship.

C. Disclosure. Oral and written requests to the OEC for an informal opinion or advice

shall include a statement disclosing if the inquiring attorney and the subject matter of the

request are involved in civil or criminal litigation.

4 Rule 7. EFFECT OF OEC OPINIONS

A. Non-binding opinions. Advice or opinions provided by Ethics Counsel and the

OEC shall have no binding effect on any court, tribunal, or the office or Committee on

Professional Conduct.

B. Discretionary consideration. The Office of Professional Conduct and Committee on

Professional Conduct, courts, and tribunals of this state may take an informal advisory

opinion into consideration to the extent each entity considers appropriate when the opinion

relates to a grievance or complaint about conduct of the attorney receiving the advisory

opinion. Each entity may give the advisory opinion such weight as it determines to be

appropriate.

Rule 8. PUBLIC SUMMARIES OF OPINIONS

A. Online publication. Redacted summaries of opinions issued by the OEC may be

made available as an online resource to attorneys and the public to foster compliance with

the Rules of Professional Conduct and ethical conduct by attorneys.

B. Anonymity. Summaries shall be written in a format and content that does not

permit the identification of the inquiring attorney, any other attorney who may be involved

in the opinion request, the subject matter of the request, any client, potential client, party,

or any litigation involving the subject matter.

Rule 9. CONFIDENTIALITY

A. Disclosure exemptions. The OEC and Ethics Counsel are exempt from any

disclosure requirements of Arkansas Rule of Professional Conduct 1.6(b), except the OEC

may disclose to appropriate agencies information Ethics Counsel reasonably believes

5 necessary to prevent the commission of a criminal act, contain a threat of suicide or serious

self-harm by the inquiring attorney, or to comply with a court order.

B. Documents. Any attorney request for an opinion submitted to the OEC and any

documents submitted as part of the request shall be treated as confidential materials by the

OEC. As files of an agency of the Court, these materials and the OEC files are exempt from

disclosure under the Arkansas Freedom of Information Act, Arkansas Code Annotated

section 25-19-101 et seq.

C. Reporting exemption. The OEC and Ethics Counsel are exempt from the reporting

requirements of Arkansas Rule of Professional Conduct 8.3 regarding information received

in the course of the advice or opinion process.

D. Subpoena exemption. The files of the OEC shall not be subject to production by

subpoena from any attorney, person, court, or tribunal.

E. Statistical Reports. Ethics Counsel or the OEC is authorized to release reports

containing statistical data to the Arkansas Supreme Court.

Rule 10. LEGAL STATUS OF THE OEC AND OEC STAFF

A. Attorney-client relationship. Submission of a request for informal advice and opinion

and any communications connected with a request do not create any attorney-client

relationship between the inquiring attorney and the OEC, Ethics Counsel, or OEC staff

pursuant to the Arkansas Rules of Professional Conduct.

B. Immunity. The OEC, its employees, agents, and Ethics Counsel are absolutely

immune from suit or action or civil liability to the full extent of judicial and State immunity

6 in Arkansas for all their activities performed in discharge of their duties under these Rules

and any subsequent rules, procedures, and orders.

Rule 11. REPORTING, RECORDS RETENTION, AND FACILITIES

A. Reporting. Ethics counsel shall prepare a quarterly report for review by the Arkansas

Supreme Court. The report shall contain a summary of the number of opinions requested,

the rules involved, and the status of each request. Ethics Counsel shall include an explanation

for any requests that have been pending for more than thirty days without an opinion.

B. Secure storage. OEC records of contacts with and advice and opinion given to

attorneys shall be maintained in a secure and confidential manner for three years from the

date a response is provided to the inquiring attorney, after which the records shall be securely

destroyed or deleted.

C. Facilities. The OEC office shall be located in a place designated by the Arkansas

Supreme Court that is consistent with the confidentiality provisions of these rules.

ARKANSAS RULES OF PROFESSIONAL CONDUCT

We hereby adopt changes to Rules 1.6 and 8.3 of the Arkansas Rules of Professional

Conduct. The revised rules are published below, with the changes set forth in “line-in, line-

out” fashion (new material is underlined; deleted material is lined through).

Rule 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless

the client gives informed consent, the disclosure is impliedly authorized in order to carry

out the representation or the disclosure is permitted by paragraph (b).

7 (b) A lawyer may reveal such information to the extent the lawyer reasonably believes

necessary:

(1) to prevent the commission of a criminal act;

(2) to prevent the client from committing a fraud that is reasonably certain to

result in injury to the financial interests or property of another and in furtherance

of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify injury to the financial interest or property of

another that is reasonably certain to result or has resulted from the client’s

commission of a crime or fraud in furtherance of which the client has used the

lawyer’s services;

(4) to secure legal advice and opinion, including from the Office of Ethics

Counsel, about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between

the lawyer and the client, to establish a defense to a criminal charge or civil claim

against the lawyer based upon conduct in which the client was involved, or to

respond to allegations in any proceeding concerning the lawyer’s representation

of the client or,

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest between lawyers in different firms,

but only if the revealed information would not compromise the attorney-client

privilege or otherwise prejudice the client.

8 (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized

disclosure of, or unauthorized access to, information relating to the representation of a client.

(d) Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from

giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any

opinion, document, affirmation or the like.

Rule 8.3. Reporting Professional Misconduct.

(a) A lawyer having knowledge that another lawyer has committed a violation of the

Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty,

trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate

professional authority.

(b) A lawyer having knowledge that a judge has committed a violation of applicable

rules of judicial conduct that raises a substantial question as to the judge’s fitness for office

shall inform the appropriate authority.

(c) This rule does not require disclosure of information otherwise protected by Rule

1.6.

(d) This rule shall not apply to a member or employee of the Lawyer Assistance

Committee (“the Committee”) of the Arkansas Judges and Lawyers Assistance Program

(“JLAP”) or a volunteer serving pursuant to Rule 4 of the Rules of JLAP regarding

information received in one’s capacity as a Committee member, employee, or volunteer.

However, the “duty to report” outlined in paragraphs (a) and (b) above is reinstated if, in

good faith, the JLAP committee member, employee, or volunteer, has: reason to believe

that an attorney participating in the JLAP program is failing to cooperate with said program;

9 is engaged in criminal behavior or the threat thereof; or, is otherwise in violation of

paragraphs (a) and (b) of this rule which is beyond or succeeds the behavior upon which the

attorney’s participation in JLAP was initially based.

(e) This rule and its reporting requirements shall not apply to the Supreme Court

Office of Ethics Counsel for information received in the course of its official duties in

providing informal advice or opinion to Arkansas lawyers.

It is so ORDERED.

WOOD, WOMACK, and WEBB, JJ., dissent.

BARBARA W. WEBB, Justice, dissenting. I do not oppose providing Arkansas

attorneys with guidance regarding the Rules of Professional Conduct. Before we take the

extraordinary step of creating the Office of Ethics Counsel, however, I believe that we

should first promulgate a draft proposal to the bench and bar for their input and critique.

Furthermore, because the need for such a resource has not been clearly determined, I think

it would be prudent to launch this new service as a pilot program for a limited period of

time––perhaps just one year. I therefore respectfully dissent.

When this court votes to change rules of practice and procedure, we routinely send

out draft versions of the new rules to solicit input. These comments have proven invaluable

in the past and have helped craft rules that are tailored to the needs of the attorneys that will

use them. Because bar dues will finance the Office of Ethics Counsel, it seems only fair to

first determine if practitioners need this service and would use it, especially if it could result

in an increase to their bar dues.

10 Putting a draft proposal out for comment will also allow us to formally benefit from

the Arkansas Bar Association’s experience in this area. The Bar Association has an ethics

advisory committee that reportedly is underutilized. This court could be well-served by

drawing on the Bar Association’s experience to refine this service.

Finally, I believe if we launch this initiative, it should be as a pilot program. If we do

not see substantial demand for this service, we should be ready to discontinue it or

significantly alter it. Given the Bar Association’s experience with its advisory committee, I

question whether we should make a permanent commitment to establishing the Office of

Ethics Counsel.

I respectfully dissent.

WOOD, J., joins.