Formal Ethics Opinions of the Idaho State Bar

The Idaho State Bar Committee on Ethics and Professional Responsibility issued formal ethics opinions from 1944 until the Committee was suspended by the Board of Commissioners in 1994.  The last formal ethics opinion issued by the Committee was in 1992.  The Idaho State Bar Board of Commissioners issued one formal ethics opinion in 1999.

The Committee was suspended in 1994 and its continued viability was referred to a Long Range Planning Committee of the Idaho State Bar.  The Long Range Planning Committee met between 1995 and 1999, and evidently concluded that the Committee on Ethics and Professional Responsibility was no longer viable, because it was discontinued.

The following formal ethics opinions, although dated, remain formal ethics opinions of the Idaho State Bar.  Since the current format of the Idaho Rules of Professional Conduct were adopted in 1986, and have been amended a number of times since 1986, most of the formal ethics opinions do not address the current Idaho Rules of Professional Conduct.  Please note that many of these formal opinions have been designated obsolete, disavowed, overruled, superceded by another formal opinion or subsequently addressed by an ABA ethics opinion.  The Notes column on the Formal Ethics Opinions List, the front page of the link to these formal ethics opinions, should therefore be consulted with respect to the subsequent treatment of any particular formal opinion.  However, the principles addressed in the formal opinions, to the extent they remain applicable and consistent with the current Idaho Rules of Professional Conduct are still utilized to interpreting the current Rules.

If you have any questions about the applicability of any formal opinion to an issue you are addressing, please feel free to contact Brad Andrews, Bar Counsel, at (208) 334-4500.   

Because of the discontinuance of the Committee on Ethics and Professional Responsibility, the current process to request a formal ethics opinion of the Idaho State Bar is to make that request to the Idaho State Bar Board of Commissioners, c/o of Bar Counsel, P.O. Box 895, Boise, Idaho 83701.  The Idaho State Bar Board of Commissioners, in its discretion, decides whether any particular topic merits a formal ethics opinion, and if it does, will issue a formal ethics opinion.  The general standards that the Idaho State Bar Board of Commissioners generally considers are whether a request for a formal opinion is of general application to the members of the Idaho State Bar, as opposed to responsive to a specific, unique set of facts or circumstances and whether the request is of sufficient breadth and interest to the Bar as a whole.  As noted above, very few requests for formal opinions are granted.

Formal Ethics Opinions by Subject

Formal Ethics Opinions List

The following opinions are in PDF format. PDF File - Get Acrobat Reader

YEAR

#

DESCRIPTION

NOTES

1944 1 Candidate for Supreme Court not to express opinion on prior Supreme Court Decision  
1956 2 Advertising obsolete
1956 3 “Hanging a Shingle” is OK  
1957 4 Lawyer w/second Occupation (Real Estate) see #6,103,109
1957 5 Judge as Executor of Estate Disavowed
1957 6 Lawyer as Insurance Adjustor see #4,103,109 and ABA #47
1958 7 Lawyer in Phone Book obsolete
1958 8 Fee Schedules, etc. obsolete
1958 9 Referral Limitations/Tax Collector–Advisor Conflict of Interest  
1958 10 County Attorney not to act as Defense Counsel see #50,77,105
1959 11 Dual Capacity/Advertising/Joint Ads see 103,109,4,6
1959 12 Judicial Education obsolete
1959 13 OK to file suit even if SOL has Run ABA Op 272
1959 14 Not OK to Lie to Client  
Undated Opinion 15 Lawyer as Prospective Witness see DR 5-101,
5-102
1959 16 Public Attorney Partnership w/Private Attorney  
Undated Opinion 17 Judge as Prosecutor see #23
Undated Opinion 18 DA as Private Attorney – facts also apply in criminal case see #32,43
Undated Opinion 19 Criminal Defense - pleas of not guilty, indigent status, payment of court appearance fees  
1959 20 Judge not to solicit support in campaign  
1959 21 Divorce Cases – contingent fees no good (support, etc. – read this)  
Undated Opinion 22 Civil Case – contacting officers/directors of corporation – must be through counsel but C.F. employees  
Undated Opinion 23 Judge Practicing Law Obsolete
Undated Opinion 24 Lawyers refer case, duty to each other, division of fees see #27
Undated Opinion 25 Councilman/Lawyer conflict, firm unit rule  
1960 26 Advertising/Shingle probably obsolete
1960 27 2nd Lawyer no duty as to 1st lawyer’s unpaid fee/local custom also see #27
1960 28 Prosecutor/Deputy prosecutor-different law firms-conflicts see 10,17,18,105
1961 29 Firm Name: can’t mislead as to who partners are, or were.  
1961 30 Division of Fees, disclosure to client, finder’s fees see #24
1961 31 Prosecutors/private employment/possible conflicts  
1961 32 Prosecutor/private case – if same facts – no good. Good overview of this Area see ABA Opinion #135
1962 33 Title company/realtor-lawyer as drafter of deeds, etc. Not permitted
1962 34 Conflict of Interest/former client/appearance of impropriety  
1962 35 Conflict/dual representation/consent ineffective see #93
Undated Opinion 36 Collection Agencies/lawyers/fee arrangements see #37
1962 37 Collection Agencies/role of credit agency/use of letterhead  
1962 38 Judge as Attorney Obsolete
1962 39 Court Reporter – court personnel/opposing counsel  
1963 40 Bank as Trustee/conflict of interest/solicitation/appearance of impropriety  
1963 41 City Attorney as criminal Defender Superceded by #105
1964 42 Not Unethical for Lawyer to “Take the 5th”.  
1964 43 Deputy Prosecutor: same fact situation – conflict see 18,32
1964 44 Client belongs to firm, not lawyer re: announcements of leaving, solicitation, encroachment see #108
1966 45 Telephone listings in area not served by Lawyer see #63
Undated Opinion 46 Conflict from before one becomes a Lawyer, still conflict adopts ABA #906
1968 47 Duty of Diligence-court appointments, duty not to excuse  
1969 48 Re: Credit Card Payment of Fees - Adopts ABA #1120.  superceded by #70
1969 49 Non-partners in same office-generally shouldn’t oppose each other. see #94
1971 50 Prosecutor/City Attorney as Defender – no good.  See “2 Public Employees” Notion see #105
1971 51 City Attorney’s Firm can’t Defend Criminals superceded by #105
1971 52 Use of Retired/Deceased Persons on letterhead  
1971 53 Prosecutor/Defender Prohibition – possible exception also see #105
1971 54 Threat of Criminal Prosecution/Civil matter, by Deputy DA  
1971 55 OK for Public Defender/Private Criminal attorney to be partners #84 is similar
1972 56 Lawyer as CPA see #103,109, obsolete
1972 57 Advertising-publication of list of members obsolete?
1972 58 Initially approached by “A” then represent “B”/share space w/MD #49,94
1972 59 Advertising/Public interest firms – obsolete  
1973 60 Representation of county and city in same county – OK  
1973 61 Attorney as Witness-when to withdraw – some changes here?  
1973 62 Bidding for public agency legal contract is not permitted see #99
1973 63 Telephone listing of lawyers see #45 - mostly obsolete
1973 64 Husband/wife, lawyer/clerk – possible conflicts  
1973 65 Withholding services (divorce) until bill paid – improper  
1973 66 Unrepresented person – giving forms to sign, giving them advice – OK for receipt of service of process.  
1973 67 Propriety of acting as attorney for Group (student groups, etc.)  
1973 68 Letterhead – inactive members in govt. service see #16,52,109
1973 69 Conflict and Remedies – member of public body and clients before it.  
1973 70 Credit Card Payment OK, no “discounts” or “Specials” overrules #48
Undated Opinion 71 No conflict for AG doing paternity and back payment requests see #37
1974 72 Lawyer advertising in “Job Wanted” context obsolete
1974 73 Advertising – New Associate – obsolete
1974 74 Prosecutor not to challenge constitutionality of statute-conflict see #91
1974 75 Confidentiality – both parties, husband & wife, dead, contract to will - charitable beneficiary  
1974 76 Public Defender, paid by country, opposing county – OK.  County not real client  
1974 77 Part-time Juvenile Prosecutor – still conflicts w/criminal defense work see #10,53
1974 78 Obligation to undertake indigent representation  
1974 79 Broad discussion of “moral” charge lawyers – also husband/wife representation  
1974 80 Conflict: Lawyer is adversary and on Disciplinary Board v. same lawyer  
1974 81 No Conflict AG employee as hearing officer and drafter Page missing
1974 82 Judge owning property with former partners  
  83 Lawyer as witness should avoid all legal work on client’s case see 15,61
1974 84 OK for public defender’s partners to do private criminal defense see #55,100
1975 85 Public attorneys – criminal defense superseded by #105
1975 86 Possible conflicts of agencies (ILAS, etc.) right to withdraw upon discovering indigency  
1975 87 Group legal services – permissible boundaries  
1975 88 Dual Professions – CPA see #103,109
1975 89 Criminal Attorney can post bail for client – (probably)  
1975 90 City Attorney as criminal Defender superseded by #105
1975 91 AG Conflict (both sides) conflict generally public can’t consent also see #74
1975 92 Public Disclosures – Lawyer’s Duty to a) not try case in press, and b) encourage client to do same  
1976 93 Non-Opinion on handling both sides in “Friendly” case also see #35
1976 94 Share office space – conflict to handle both sides see #49
1976 95 Suing for Attorney’s fees/”Attorney Fees” in those cases  
1977 96 Attorney-Client Privilege – Fugitive – no reveal to FBI  
1977 97 Lawyer as “Answer-Man” in paper partially obsolete
1977 98 Contributions to Judicial Campaigns  
1977 99 Unethical to propose oneself as Public Defender if no prior intention to have such post. see #62
1977 100 Public Defender – partners to do some criminal work – he does civil – OK see #55,84
Undated Opinion 101 What to turn over to client re: withdrawal, change of attorneys  
Undated Opinion 102 Fee arrangements – how to compute – construction of fee contracts.  
1981 103 Dual Professions – financial consulting see also 11,88 and 109
1981 104 Unethical to pay a contingent fee to a “Witness Finder”  
1981 105 City Attorney may represent Defendants in certain cases  
1981 106 Unethical to seat impostor at counsel table for mis-identification  
1981 107 Improper Advertising – fail to clearly identify “AD”  
1981 108 Covenant not to compete – unethical between lawyers see #44
1981 109 Dual Professions/Letterhead OK/bad to have non-lawyers on letterhead  
1982 110 Sharing office space not a conflict – but . . . . see #94, #49
1982 111 Donation of legal services to charitable auction - unethical  
1982 112 Yellow Pages Listing  
1983 113 Any ethical  problems arise when a father and son, who are also attorneys, practice in the same community where one is prosecuting attorney and the other intends to defend criminal cases  
1983 114 Propriety of a lawyer participating in a private attorney referral service  
1984 115 Interest on trust accounts  
1984 116 Interest on lawyer trust account (IOLTA)  
1986 117 Propriety of attorney allowing client, a collection agency, to recover and retain attorney fees awarded by court  
1987 118 Conflict – husband in private practice/wife as law clerk  
1987 119 Office sharing – criminal defense attorney and part-time prosecutor  
1988 120 Lawyer may properly represent client in execution of small claims judgment  
1988 121 How to handle unclaimed trust funds  
1988 122 Lawyer may not keep a “pad” in the trust account  
1988 123 Advertising – should not advertise in city w/no office, w/out clarification  
1988 124 Calculation of contingent fees  
1988 125 Application of Opinion #117 to government attorneys  
1988 126 Advertising – firm names  
1989 127 Solicitation – placing random calls  
1989 128 Use of “Witness Finder”  
1989 129 Small Claims Court  
1989 130 Recording Telephone Calls  
1989 131 Firm Names  
1989 132 NSF Checks – prosecutor violating I.R.P.C. 4.4?  
1990 133 Prosecutor defending in other jurisdictions  
1992 134 Direct contact with clients  
1992 135 Living Trusts  
1999 136 Audit Opinion