Your Two Cents’ Could Be Worth a Lot

Brad Bannon On How and Why Lawyers Should Participate in the State Bar FEO and Rule Amendment Process

An individual lawyer’s suggestions provided during the comment period can influence the outcome of a State Bar Formal Ethics Opinion, if done professionally.

NCAJ Past President Brad Bannon offered that reminder during his presentation at the Criminal Defense Section’s monthly roundtable discussion on Tuesday. Bannon is in his seventh year of service as an advisory member of the State Bar Ethics Committee.

“The more specific and measured you are in your language, the more your comment is going to be considered and taken seriously,” Bannon said. “The more you can analyze the situation and refer to other rules, refer to other Formal Ethics Opinions and try to draw parallels and distinctions when you’re stating your position the more likely your comment is not only going to be considered, it may be incorporated into the final language of the opinion. I’ve seen that happen a number of times with individual comments and with NCAJ comments.”

One phrase to delete before sending: “If the person who wrote this had any idea how to practice law …”

Bannon offered an overview of the Ethics Committee’s process and the role that NCAJ and individual NCAJ members play in shaping Formal Ethics Opinions and amendments to Rules of Professional Conduct. He said the committee values input at every stage of the process.

NCAJ monitors the activities of the State Bar to identify issues to bring to the attention of NCAJ’s Legal Affairs Vice President and the Legal Affairs Committee.

“Either way, NCAJ is generally focused on these developments in much the same way we’re focused on legislative developments. What happens in the Ethics Committee impacts not only our practice but our clients’ interests.”

The Process

Most formal ethics opinions begin as inquiries from members of the bar to State Bar staff, led by Director for Ethics and Special Programs Brian Oten. State Bar staff members conduct research and draft a proposed opinion that serves as a starting point. The State Bar Ethics Committee, composed of State Bar Councilors and Advisory Members, meets quarterly and reviews the proposed opinions then sends them to a subcommittee, where more research and analysis is done. Subcommittee meetings are public, records are kept and can be accessed via request.

“At that stage, a lot of the real work is done,” Bannon said. “Staff will reach out to stakeholders, such as the NCAJ, and that input is discussed by the subcommittee. The point of that part of the process is to reach as many people as possible when the actual language is being worked through word for word.”

When the subcommittee is satisfied with the opinion, it will send the final rewrite to the Ethics Committee, which then sends it to the State Bar Council. Sometimes that additional debate leads to guidance from the Council.

After review and revision, the full Ethics Committee votes by majority to publish the Formal Ethics Opinion, and it is available in the State Bar Journal in print and online. After publication, the period of public comment opens. The Ethics Committee reviews the public comments and votes. If approved, the FEO meets its final step, which is to go to the full Council, which votes on whether to adopt it.

Amendments to the Rules of Professional Conduct follow the same process with the additional step of going to the Supreme Court of North Carolina for final adoption. That process, Bannon said, occurs in complete secrecy and without notice. The Supreme Court can decline a proposed amendment without explanation.

Lots of Irons, Lots of Fires

NCAJ has over the years grown to be a huge presence in the process that produces Formal Ethics Opinions and amendments to the Rules of Professional Conduct.

“The committee and the organization and the statewide leadership of our bar look to us for our opinion, and we are very well reputed among those bodies because we’ve earned it,” Bannon said.

This doesn’t mean that NCAJ can speak to every issue, nor can it always speak with a single voice.

“NCAJ has a lot of irons in a lot of different fires — we can’t often and don’t often weigh in on every single thing that there is to weigh in on or that we’re asked to weigh in on,” Bannon said. “And sometimes, when we do, sometimes it’s not what individual members hoped we would do. Under those circumstances, anybody who believes they are right about something or that their opinion should be considered independently of NCAJ’s should absolutely make their own individual comment.”

Now that the State Bar Ethics Committee’s meetings stream live online via YouTube, individuals can also offer their comments during the meeting by asking to be recognized by the committee chair.

“The silver linining to the pandemic is we can see more of what work is done in these public meetings since they are simulcast,” Bannon said.

Bannon also reminded everyone that they can call or email the State Bar for ethics guidance on specific situations.