As lawyers, our job is fundamentally to provide answers to our client's questions. However, in our own practice we are often left with more questions than answers. Everyday the practice of law presents a new host of ethical quandaries, which we are left to ponder the answers to. Fortunately, there are a number of resources specifically designed to give lawyers answers to these questions.

The Source—Disciplinary Opinions

If you are facing a potential ethical issue, it may be cold comfort, but others have undoubtedly faced the same issue. The Unified Judicial System of Pennsylvania website allows attorneys to search Disciplinary Board Reports and Recommendations as well as Supreme Court of Pennsylvania Opinions in attorney discipline matters. Each year for the last 10 years, there have been between 254 and 320 disciplinary actions taken by the Supreme Court of Pennsylvania. In 2017, there were 17 public reprimands, seven probations, one public censure, 40 suspensions (16 on consent), and 35 disbarments (15 on consent). The Disciplinary Board publishes reports and recommendations for a significant number of disciplinary actions each year. The Supreme Court of Pennsylvania issues substantive opinions on disciplinary issues about once a year.

It is rare that an attorney manages to find an entirely new way to get in trouble. If your proposed course of conduct is likely to get you into ethical hot water, then someone else has most likely already gotten in trouble for the same type of conduct. Disciplinary opinions can be searched on the Disciplinary Board's website and on the Unified Judicial System's website.

Say you have a “can't miss” investment that you would like to recommend to a client, but you are unsure if it would be a good idea to involve your client in the investment. The Disciplinary Board has several opinions regarding this issue. A search on the Unified Judicial System website for the term “invest” brings up the opinion of ODC v. Gnall. David James Gnall referred a number of clients to James Peperno a “financial adviser.” Peperno invested some of the clients' funds and converted some of the funds. Peperno paid Gnall referral fees. Gnall was sentenced to prison for a year and a day, and resigned his license to practice law.

Your Friends and Colleagues—the Bar

The Philadelphia Bar Association, the Pennsylvania Bar Association, and the American Bar Association, all take an active role in advising attorneys on ethical issues. Both the Philadelphia Bar Association (215-238-6328) and the Pennsylvania Bar Association (800-932-0311, ext. 2214) have professional guidance hotlines. The bar associations all regularly issue advisory opinions on a wide range of ethical issues.

The advisory opinions of the various bar associations are not binding on the Disciplinary Board or the Supreme Court. However, intent is a very important consideration in disciplinary proceedings. If an attorney has consulted relevant opinions by the bar associations and found an advisory opinion to support her position, then the chances of avoiding discipline can be significantly increased.

The Philadelphia Bar Association

The Philadelphia Bar Association's Professional Guidance Committee generally publishes between five and 10 opinions each year. The opinions can be found on the bar association's website. The opinions can be searched from the website's homepage or by utilizing an attached descriptive word index. As the website states, “Opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other court. They carry only such weight as an appropriate reviewing authority may choose to give it.”

Utilizing the same practitioner question regarding steering clients towards investments, the Philadelphia Bar Association's descriptive word index, under “investment products,” leads the practitioner to opinion 2015-2. Opinion 2015-2 addresses the ethical propriety of a “strategic partnership” with a financial services provider. The proposed relationship included payment to the attorney on an ongoing basis of a portion of fees paid to the financial services provider based on portfolio value. The opinion issued by the Professional Guidance Committee noted that new amendments to the Pennsylvania Rules of Professional Conduct, which were effective at the end of February 2015, included a new Rule 5.8b1 which provides “Rule 5.8 Dealing in Investment Products: Prohibitions and Restrictions: A lawyer shall not recommend or offer an investment product to a client or any person with whom the lawyer has a fiduciary relationship, or invest funds belonging to such a person in an investment product, if the lawyer or a person related to the lawyer has an interest in compensation paid or provided by a person other than the client or person with whom the lawyer has a fiduciary relationship …”

Comment 2 to Rule 5.8b1 provides in part that, “… clients who place their trust in their lawyer and assume or expect that the lawyer will protect them from harm are likely to feel deceived if substantial sums of money are lost on investments pursued at the lawyer's recommendation or prompting and the lawyer … either receives compensation or a pecuniary benefit from a person other than the client … even when the reason for the loss is limited to unexpected market conditions …”

Noting the new rule is not the only restriction on such an arrangement, the guidance committee's opinion cites to the previous joint opinion 2000-100 of the Philadelphia Bar and Pennsylvania Bar to state: the arrangement described by the inquirer, where she would receive a continuing payment for an undefined period, and where such payment would continue even if the investments did poorly, could very well create an impermissible conflict with the client/fiduciary as the attorney would have a disincentive from advising the client/fiduciary to seek investment services elsewhere.

The Pennsylvania Bar Association

The Pennsylvania Bar Association's Legal Ethics and Professional Responsibility Committee also publishes several ethical guidance opinions each year. The Pennsylvania Bar Association's opinions can be searched on their website.

A search of the Pennsylvania Bar Association's opinions for the term “invest” brings up six opinions, including 2016-015. Opinion 2016-015 addresses an attorney who is also a certified financial planner offering insurance and annuities to clients who may also want him to perform legal work related to estate planning. The opinion unequivocally states that under Rule 5.8(b), this is prohibited conduct for clients with whom the attorney has an attorney-client relationship. The rule does not preclude offering legal services to a client who was previously been offered investment products.

While the legal profession can often leave a practitioner with more questions than answers, knowing where to turn to for the answers can be a great succor. Your bar association exists to serve lawyers. Making use of the resources it provides is good professional practice.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is also co-chair of the Philadelphia Bar Association's professional guidance committee and the incoming chair of the Pennsylvania Bar Association's professional liability committee.