How does the State Bar of California committee process requests for legal ethics opinions?

Currency note

This opinion was issued in 1965, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It addresses the committee's own procedures rather than a rule of professional conduct, but subsequent State Bar rules and committee practices may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific procedure mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

This was the committee's first published opinion, and it described how the committee on legal ethics would receive and dispose of requests for advisory opinions. At the time, all requests were to be sent to the San Francisco office and channeled through the disciplinary staff, who would first determine whether a complaint or disciplinary action was pending against the inquirer involving the same subject matter. If such a complaint was pending, or if the request was in substance a complaint against another lawyer, it was returned without action.

For inquirers facing an immediate problem, the staff could, without expressing an opinion, point to pertinent ethics materials. Where a committee opinion was clearly requested and the matter was one the committee could act on, the inquiry was copied and circulated to the members, with the original kept in a permanent San Francisco file. Before issuing any opinion, the committee again checked with the disciplinary staff for any pending complaint or proceeding on the same matter.

The opinion also recorded additional rules adopted by the Board of Governors: routing referrals to the chairman for preliminary analysis; allowing the chairman to assign drafting to a subcommittee or member, or to answer simple questions by letter subject to member objection; and listing matters on which the committee would decline to opine (conduct solely within the courts' purview such as contempt; questions turning principally on law rather than ethics; conduct under study by the Board or other committees; and the State Bar's complaint-processing procedures).

Finally, the opinion set housekeeping rules: each formal opinion would carry headnotes and be numbered chronologically by year, beginning with 1965-1; each opinion would close with the standard advisory-only disclaimer; a quorum was five members, with adoption requiring concurrence of at least five (or six between meetings, subject to a member's right to hold an opinion for full discussion); and the committee would meet at least twice a year, alternating between San Francisco and Los Angeles.

Common questions

Q: Where were requests for California ethics opinions originally sent?

A: Under this opinion, all requests were to be sent to the State Bar's San Francisco office in the first instance and channeled through the disciplinary staff there.

Q: Would the committee answer a question if a disciplinary complaint was pending?

A: No. If a complaint or disciplinary action was pending against the inquirer on the same or a related subject, or if the request was in substance a complaint against another lawyer, it was returned without action; the committee also rechecked for pending complaints before issuing any opinion.

Q: What matters did the committee decline to address?

A: The opinion listed conduct solely within the courts' purview (such as contempt), questions turning principally on a point of law rather than ethics, conduct then under study by the Board of Governors or other committees, and the State Bar's own complaint-processing procedures.

Q: How many members had to agree before an opinion issued?

A: A quorum was five members. A formal opinion adopted at a meeting required concurrence of at least five members; between meetings an opinion could be adopted with six concurrences, subject to any nonconcurring member's right to hold it for discussion at a meeting.

Background and rules framework

This opinion does not interpret a specific California Rule of Professional Conduct. It records the committee's procedural ground rules and the supplementary rules adopted by the Board of Governors under the resolution that created the committee, including the requirement that every formal opinion close with the advisory-only disclaimer.

Citations and references

Other authorities:

• Resolution of the Board of Governors creating the Committee on Legal Ethics (procedural rules adopted pursuant to paragraph 5).

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1965-1.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1965-1

1. All requests for opinions on questions of legal ethics shall be sent to the San Francisco office in the first instance and channeled through the disciplinary staff of that office.

2. Upon receipt of any such request, the staff member to whom it is referred shall determine whether a complaint or any disciplinary action is pending against the inquirer involving the same or a related subject matter.

3. If such a complaint or disciplinary action is pending or if it appears that the request is in substance a complaint against another member of the bar, the request will be returned to the inquirer without action.

4. If no such complaint or disciplinary action is pending, the inquirer shall, in appropriate cases, be advised of the existence and functions of the Committee on Legal Ethics and the procedure for submitting to the Committee requests for advisory opinions.

5. Where it appears from the request that the inquirer is faced with a problem requiring immediate information, the disciplinary staff in the San Francisco office shall, without expressing an opinion, additionally advise the inquirer of pertinent ethics materials and opinions which may assist him in making up his own mind.

6. Where it is clear from the inquiry that an opinion of the Committee on Legal Ethics is being requested, and the disciplinary staff has determined that the matter is one on which the Committee is authorized to act, ten copies of the inquiry shall be made by the San Francisco office. A copy will be immediately forwarded to each member of the Committee with a cover letter stating what action has been taken by the State Bar staff and enclosing copies of any prior, pertinent correspondence. One copy will be forwarded, the information only, to the Los Angeles office of the State Bar and the original shall be filed in a permanent file in the San Francisco office.

7. Prior to the issuance of any opinion, the Committee shall contact the disciplinary staff of the San Francisco office to determine whether any complaint has been filed or any disciplinary proceeding is pending at that time involving the same matter. If it is determined that such a complaint or proceeding is pending, the request shall be returned to the inquirer without further action by the Committee.

8. When an opinion has been rendered by the Committee, it shall forward a copy thereof to the San Francisco and Los Angeles offices of the State Bar.

In addition thereto, pursuant to paragraph 5 of the resolution of the Board of Governors creating said Committee, the Board adopted the following additional rules:

9. All referrals for opinions shall be routed to the Chairman for preliminary analysis and for determination of whether an opinion by the Committee is necessary. The Chairman may assign a request for an opinion to a subcommittee or to an individual member for analysis and preparation of a draft for consideration by the whole Committee. Where the Chairman concludes that the request is of a simple or routine nature, the Chairman may answer the request by letter, a copy of which shall be sent to the other members. In the event the Chairman concludes to answer the question directly without referring it to an individual or a subcommittee, he shall advise the other members of the Committee by letter of the contents of the proposed opinion he will release in the absence of an objection by a member of the Committee in a ten day period from date.

10. Except upon request of the Board of Governors, the Committee shall decline to issue opinions pertaining to the following matters:

(a) Conduct solely within the purview of the courts, such as contempt;

(b) Activities, the propriety of which depends principally on a question of law rather than ethics;

(c) Conduct being studied by the Board of Governors or other committees of The State Bar of California; for example Group Legal Services, House Counsel;

(d) Procedures employed by The State Bar of California in processing complaints against members of the bar.

11. Each formal opinion released by the Committee shall bear headnotes and be numbered chronologically by year and the first opinion shall read 1965-1. The headnotes shall briefly summarize the factual situation, identify and categorize the statute, rule of professional conduct or Canon of the American Bar Association involved.

12. Each written opinion of the Committee shall be concluded with the following language:

"This opinion is issued by the Committee on Professional Ethics of The State Bar of California. It is advisory only. It does not bind The State Bar of California, its Board of Governors, or any of its disciplinary committees."

13. A quorum of the Committee shall consist of not less than five members. All formal opinions of the Committee shall be adopted or authorized at a meeting of the Committee and be concurred in by at least five members. Between meetings of the Committee, any opinion may be adopted if it is concurred with by at least six members, providing that any nonconcurring member shall have the right to require that an opinion be withheld pending a specific discussion of the question involved at a meeting of the Committee.

14. The Committee shall meet at least twice a year as a Committee of the Whole, alternatively in San Francisco and Los Angeles and at such other times as may be necessary to dispose of pending matters subject to the call of the Chairman and with the approval of the State Bar.