Maybe it’s the sunshine. 

Whatever it is, I arrived at the office intending to blog. The only barrier to accomplishing my goal? Something to blog about. Well, thanks to a project unrelated to blogging, mission accomplished.  What follows is the first of a two-part post that I’ve broken up like this:

  • Part 1: how’d we get  here?
  • Part 2: what to do upon receiving a subpoena to provide information relating to the representation of a former client.

How’d we get here?

I’m looking into how many jurisdictions offer informal guidance to lawyers on issues related to professional responsibility, whether dubbed an “ethics hotline,” “ethics helpline,” or, as we call them, “inquiries of bar counsel.” There are five states for which I don’t yet know the answer. However, in 44 of the other 46 – I included D.C. – there’s somewhere a lawyer can go for proactive guidance.[1] 

This is a good thing. 

In a 2019 post about the duty of confidentiality, I wrote:

  • “We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.”

I wasn’t the first to think of this.

In 1992, the American Bar Association adopted the Report of the Commission on Evaluation of Disciplinary Enforcement.  It’s better known, at least in bar counsel circles, as the McKay Report. Attorney McKay described the work of the Commission he chaired as follows:

  • “The mission of the Commission is no less than to move the system of lawyer discipline into a future only now beginning to be recognized. The solutions projected must be creative, yet pragmatic enough to meet the needs of the new century, which is scarcely further removed than around history’s corner.”

The report makes 20 recommendations. Some have been adopted in Vermont, others haven’t. While the report does not specifically reference or recommend an inquiry program or informal practice guidance, it comes damn close.

For example, the report recognizes that the ABA “has long been a prime mover in developing discipline, ethics, professionalism, client protection, and other professional responsibility activities.”[2] Then, after noting that discipline, while necessary, doesn’t solve everything, the report recommends that courts “expand the scope of public protection” by adopting attorney regulation systems that, among other things, include “lawyer practice assistance” and “lawyer substance abuse counseling.”[3]

In other words, more than 30 years ago, we knew that public protection includes assisting lawyers with their practices and helping them stay healthy enough to practice.

In 1999, the Vermont Supreme Court created a new system of attorney regulation: the Professional Responsibility Program.  Per Administrative Order 9, part of the purpose of creating the PRP was “to assist attorneys and the public by providing education, advice, referrals, and other information designed to maintain and enhance the standards of professional responsibility.”  To that end:

  • “Inquiries from attorneys regarding ethical issues or practice questions shall be referred to bar counsel, who may provide referrals, educational materials, and preventive advice and information to assist attorneys to achieve and maintain high standards of professional responsibility.”[4]

Back then, I was deputy disciplinary counsel and, therefore, was not involved in the inquiry process. Some of you might remember Wendy Collins. Wendy served as bar counsel until 2012.  She was instrumental in developing the new PRP, firmly placing Vermont ahead of the curve in the national response to the McKay Report.[5]

As time passed, we remained ahead of the curve.[6]  Eventually, though, others caught up. 

For example, in 2016, the ABA House of Delegates adopted Resolution 106 in which it urged states to adopt model regulatory objectives, including public protection, the “efficient, competent, and ethical delivery of legal services,” and not only “disciplinary sanctions for misconduct,” but also the “advancement of appropriate preventive and wellness programs.” I’d argue that the inquiry program serves to further each objective.

Then, in 2019, the ABA House of Delegates adopt Resolution 107.  I blogged about it in The Future of Attorney Regulation is Proactive. In short, and if you don’t want to read the post, here’s Resolution 107.

  • “RESOLVED: That the American Bar Association urges each state’s highest court, and those of each territory and tribe, to study and adopt proactive management-based regulatory programs appropriate for their jurisdiction, as a way to enhance compliance with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms, and to:

a. assist lawyers, law firms, and other entities in which lawyers practice law in the development and maintenance of ethical infrastructures that help to prevent violations of applicable rules of professional conduct;

b. reduce complaints to lawyer disciplinary authorities;

c. enhance lawyers’ provision of competent and cost-effective legal services; and

d. encourage professionalism and civility in the profession.”

This is exactly what we’d been doing since 1999 with the inquiry program.

My blog post shows the significant decrease in complaints that followed the decision to make bar counsel full-time. Is correlation causation? We’ll never know. However, even if it isn’t, I’d argue that providing accessible and quick assistance to hundreds (and sometimes thousands) of Vermont lawyers each year is a good thing.

In any event, in 2016, the National Organization of Bar Counsel invited me to share Vermont’s experience with incorporating proactive guidance at a seminar in Houston. I remember many regulators questioning, however politely, the value in doing so.

By 2022, things had improved.  Enough jurisdictions had adopted programs similar to Vermont’s inquiry program that the NOBC’s Annual Meeting included a seminar on the different ways that states provide proactive guidance.[7]

Which, finally, brings me back to my recent project and learning, to my pleasure, that at least 44 jurisdictions now provide lawyers with access to proactive guidance related to professional responsibility.

That’s how we got here.

Are we perfect?

No. Not even close.

But we ain’t bad. And soon I hope to have finished a project intended to provide lawyers with a one-stop resource to build a sound ethical infrastructure.  Stay tuned.

But, first, part 2 and responding to subpoenas.

As always, let’s be careful out there.

[1] The “somewhere” varies by jurisdiction. In some, it’s the disciplinary office or another division of the attorney regulation structure. In other, it’s an office within a bar association that operates independently of a state supreme court’s attorney discipline/regulation program.

[2] McKay Report, Recommendation 2.

[3] McKay Report, Recommendation 3.

[4] When A.O. 9 took effect on September 1, 199p, this was Rule 9.

[5] If not the first, Vermont was one of the first states to implement a program designed to provide proactive guidance to lawyers. We were also one of the first to adopt another of the McKay Report’s recommendations: assistance panels to provide for the non-disciplinary resolution of disciplinary complaints. Per A.O. 9, bar counsel administers the assistance panels. In short, Wendy’s work laid the foundation for today’s Bar Assistance Program.

[6] When Wendy retired in 2012, the Professional Responsibility Board (PRB) and Supreme Court made “bar counsel” a full-time job, implicitly recognizing the value of the 1999 decision that the PRP would include “preventive advice and information to assist attorneys to maintain high standards of professional responsibility.”

[7]I was fortunate to serve on the panel with others who are committed to the idea that attorney regulation includes assisting lawyers to enhance their competence and professionalism: Elizabeth Tarbert (Florida), Melinda Bentley (Missouri), Jeanne Marie Clavere (Washington), and Wendy Muchman (Northwestern Pritzker School of Law.)