By G. Michael Witte | Executive Director, Indiana Supreme Court Disciplinary Commission
Beginning in Spring 2018, for the first time in its history, the Indiana Supreme Court Disciplinary Commission will undertake an advisory role as a part of its official duties. Ethical guidance will be provided through formal written opinions and informal individual guidance.
Formal written opinions will be published and serve to educate the entire Indiana Bar on an issue of interest that is attractive to most lawyers rather than any individual. Informal guidance will be directed to an individual, and it will never be published. It will be confidential and hypothetical on a given set of facts.
Court Appointed Task Force
In 2017, the Indiana Supreme Court convened a task force to investigate the feasibility of both formal advisory opinions and informal individual advice related to lawyer ethics. Presided over by Supreme Court Justice Geoffrey Slaughter, members included representatives from the Bar, the Indiana Office of Judicial Administration, the Indiana Prosecuting Attorneys Council, and the Commission. The group met four times during the year and participated in a four-month test phase where the Commission provided informal, individual guidance.
Based on this work, the task force made a series of recommendations, and the Court directed the Commission to implement the advisory process accordingly. The introduction of these new formal advisory opinions and informal guidance processes, as well as the guidelines by which they operate, is based on these recommendations.
Formal Written Advisory Opinion
Formal written advisory opinions will be issued as the need arises. The Commission will research, analyze, and scrutinize an opinion before its publication through the Court’s Office of Communication, Education, and Outreach. Formal opinions will carry the disclaimer that they are merely advisory and do not represent the views or interpretations of the Court. Selection of an opinion topic and its writing will be independent of the Court, and the Court will not impose final approval before publication.
An outside request for a formal opinion must come from an organized bar entity or agency, where the ethical issue in question should first be fully vetted before requesting an opinion. The Commission issued its first opinion in April answering the question of whether a lawyer can participate in an online legal referral service where the lawyer must pay a “marketing fee” for each service completed.
Informal Individual Guidance
Commission staff will not be rendering individual opinions that tell a lawyer “yes, you can” or “no, you can’t.” Instead, the Commission will point inquirers to applicable authority so that lawyers can assess for themselves whether their conduct is compliant with the Rules of Professional Conduct.
The Indiana Courts Portal will be the sole method of submitting a request for informal individual guidance. This guidance is intended to be a tool to prevent unethical conduct for lawyers in good standing and is not a general hotline for the public to ask if a lawyer’s conduct is ethical.
The informal individual guidance process will have limitations. The Commission will not offer guidance on issues involving advertising & marketing; past conduct; pending litigation; conduct other than that of the inquirer; the content of motions, responses, trial briefs, legal memorandums in pending litigation; or questions related to law practice or law office management not related to ethical rules.
This watershed moment for the Commission and for the Bar is due to the diligent work of the task force, Commission staff, and support from the Court. It is anticipated that prevention of ethical mishaps will enhance professionalism and improve the public’s attitude toward lawyers.