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  Please note that many of these formal opinions have been designated obsolete, disavowed, overruled, superceded by another formal opinion or subsequently addressed by an ABA ethics opinion.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.

List of Formal Ethics Opinions

Formal Ethics Opinions by Subject

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

ACCOUNTANT
            See Business Activity
ACQUIRING INTEREST IN LITIGATION
            Lawyer advancing costs
                        For filing fee and service costs – 24
                        For bail – 89
ADJUSTER
            See Insurance Adjuster
ADMINISTRATIVE AGENCY
            See Public Office, attorney general, Conflict of Interest, administrative agency
ADVERSE PARTY
            Advertising, adoption information – 107
            Advice, unrepresented party in divorce proceeding – 66
            Communication with directors, officers and employees of corporation represented by counsel – 22
            Representation of adverse party in subsequent phase of same litigation – Opinion 34, Opinion 46
ADVERTISING
            See also, Letterhead, Solicitation
            Acquaint public with need for legal services – 59
            Announcement
                        New law office, opening of –2
                        Summer hours – 2
            Auction, donating legal services for – 111
            Card, professional
                        Newspaper, use in – Opinion 2, Opinion 73
            In publications
                        List of Estate Planning Council members given to institute participants – 57
                        Newspaper
                                    Adoption services – 107
                                    Announcement card
                                                For new office –2
                                                For new partner – 73
                                                Column – 97
                                                Employment, availability for – 72
                                                Picture – 2
                                                Self-laudatory remarks – Opinion 2, Opinion 107
                                    Telephone directory – 112
                                                Classified section – 112
                                                Branch office – 45
                                                Out-of-town listing – 63
                                                Areas of practice/yellow pages – 112
                                                Non-classified section
                                                            Bold type – 7
                                    Indigents, inform of legal aid services – 59
                                    Lawyer referral – 114
                                    Shingle
                                                Office – 3
                                                Residence – 26
ANNOUNCEMENTS
            See Advertising
ATTORNEY-CLIENT PRIVILEGE
            See Confidences of Client
ATTORNEY GENERAL
            See Public Office
ATTORNEY’S FEES
            See division of Fees; Fee; Contingent Fee
            Auction – See Advertising; Solicitation; Conflict of Interest
BAIL
            Attorney posts for client – 89
BID
            Legal work, for – 62
BUSINESS ACTIVITY
            Accountant – Opinion 11, Opinion 56, Opinion 88, Opinion 109
            Insurance adjuster –6
            Real estate broker – 4
            Securities broker – 103
CLIENT PAPERS AND DOCUMENTS
            Return of – 101
COLLECTION AGENCY
            Compensation, to attorney – 36
            Employment, of attorney by agency – 36
            Relationship, with attorney and creditor – 37
COMMUNICATION WITH ADVERSE PARTY
            See Adverse Party
CONFIDENCES OF CLIENT
            Disclosure of
                        Contract to will after death of both parties – 75
                        Fugitive, whereabouts of – 96
                        Office sharing, between attorneys – 110
            Represent defendant after refusal to represent plaintiff – 58
CONFLICT OF INTEREST
            Administrative agency represents several clients competing for license – Opinion 35, Opinion 93
            Attorney disciplinary proceedings attorney investigator is adversary of attorney under investigation in pending civil matter – 80
            Attorney general
                        Represent Industrial Commission as hearing officer and as advisor to Industrial Special Indemnity Fund – 81
                        Represent opposing entities of state government in active litigation – 91
                        Represent plaintiff mother and state department in paternity proceedings – 71
                        Auction – potential thru donation of services for – 111
            County prosecutor
                        As municipal attorney – 60
                        Civil action involving same facts as a criminal prosecution – Opinion 18, Opinion 32, Opinion 43
                        Defending criminal cases – Opinion 10, Opinion 50, Opinion 53, Opinion 77
                        Represent deputy sheriff and insurer in suit against county – 31
                        Represent private client in civil action against the state – 74
                                    Involving same facts as criminal prosecution – Opinion 18, Opinion 32, Opinion 43
                                    When deputy prosecutor, in different law firm, represents the opposing party - 28
                        Father defending criminal client – 113
                        Spouse as Deputy Clerk, Auditor and Recorder – 64
            Government tax attorney
                        Advise private clients on tax planning – 9
            Guardianship
                        Represent claimant and guardian – 40
            Judge
                        Criminal cases
                                    As defense counsel – Opinion 23, Opinion 38
                                    As prosecutor – Opinion 17, Opinion 23
                        Estate matters
                                    As administrator – 5
                                    Represents client in – 38
                        Studies in office of county prosecutor – 12
            Legal aid society
                        Represents both sides in civil case – 86
            Municipal attorney
                        As county prosecutor – 60
                        Defending criminal cases
                                    Civil duties only – 90
                                    Criminal prosecution duties – Opinion 41, Opinion 50, Opinion 51, Opinion 85, Opinion 105
            Office sharers
                        Must observe partnership rule on avoidance of conflict of interest – Opinion 49, Opinion 94, Opinion 111
            Public defender
                        Engage in civil practice as member of firm – 99
                        Partner represents paid clients in criminal matters – Opinion 5, Opinion 84
                        Represent private client in action against county – 76
                        Represent
                                    Defendant after refusal to represent plaintiff – 58
                                    Defendant while on Board of Directors of plaintiff – 93
                                    Husband and wife in divorce – 79
                                    Opposing party in subsequent phase of same litigation – Opinion 34, Opinion 46
                        Village trustee
                                    Represents private client against village – 25
                        Zoning board member
                                    Duty to disclose representation of professional society of homebuilders – 69
CONTINGENT FEE
            See also, Division of Fees; Fee
            Division where court awards attorney fees – 102
            Divorce – 21
            Finder’s fee, witnesses, 104
CORPORATION
            Communications, with directors, officers and employees – 22
COURT REPORTER
            Opposing attorney’s request for same transcript as ordered by other attorney – 39
CREDT CARD
            See Financing; Fee
CRIMINAL DEFENSE PRACTICE
            Attorney posts bail for client – 89
            Disclosure
                        Identity of defendant at trial – 106
                        Fugitive, whereabouts of – 96
            Indigent clients
                        Accept court appointments, duty to – 78
                        Communicate with defendant, duty to – 47
                        Disclose change in client’s finances, duty to – 19
                        Fee, basis of – 19
            Partner of public defender represents paid clients in criminal matters – Opinion 55, Opinion 84
            Purpose of not guilty plea – 19
            Represent municipality or state – Opinion 10, Opinion 41, Opinion 50, Opinion 51, Opinion 53, Opinion 77, Opinion 85, Opinion 105
            Father of prosecutor, defending criminal – 113
CRIMINAL PROSECUTION PRACTICE
            See specific office, Public Office
DIVISION OF FEES
            See also Fee; Contingent Fee; Lay Intermediaries
            Client, with
                        Where court awards attorney fees – 102
            Lawyer, with
                        Joint representation –30
                        Referral of legal business – 24
                        Who leaves firm – Opinion 44, Opinion 108
            Lay entity, with
                        Collection agency – 36
                        Finder – 104
DUAL PROFESSIONAL AND BUSINESS ACTIVITY
            See specific profession or business, Business Activity
FALSE STATEMENT OF LAW OR FACT
            Client, to –14
            Court, to – 105
            Jury, to – 106
FEE
            See also Division of Fees; Contingent Fee
            Contingent – see Contingent Fee
            Court awarded attorney fees client, effect on fee agreement with – 31
            Division of – see Division of Fee
            Factors to be considered – 8
            Financing of
                        Credit card – Opinion 48, Opinion 70
            Indigent clients
                        Criminal – 19
            Minimum fee schedule – 8
            Substituted counsel
                        Unpaid – 27
            Suing client for – 95
            Unpaid
                        Refusal to submit judgment in default divorce until attorney fees paid – 65
            Substituted counsel – 27
FIFTH AMENDMENT
            Use by attorney, both as office and counsel for corporation – 42
FILES
            Client
                        Removal by attorney employee leaving firm – 44
                        Return of – 101
HOUSE COUNSEL
            Attorney-employee advising Board of Directors, staff and members of association – 87
            Student association; students receive advice and association pays fee – 67
INSURANCE ADJUSTER
            Lawyer acting as – 6
JUDGE
            Campaign conduct
                        Contracting attorneys for support and endorsement for appointment to higher judicial office – 20
                        Contributions and endorsements by lawyers – 98
                        Candidate’s expression of rightness or wrongness of Supreme Court opinion – 1
            Continue ownership of building with former partners and rent building to remaining partners – 82
            Criminal cases
                        As defense counsel – Opinion 23, Opinion 30
                        As prosecutor – Opinion 17, Opinion 23
            Estate matters
                        As administrator – 5
                        Represent client in – 38
            Studies in office of county prosecutor – 12
JUDGMENT
            Refusal to submit judgment in default divorce until attorney fees paid – 65
LAW FIRM
            Covenants not to compete – 108
            Name
                        Deceased or former partner’s name – Opinion 29, Opinion 52
                        Member administrative assistant to U.S. Congressman – 64
                        Member holds public office – 16
                        Partnership, implication of where none exists – 29
            Removal of files and division of fees with attorney-employee who leaves firm – 44
LAW OFFICE
            Building
                        Share with attorney
                                    Must observe partnership rule on avoiding conflict of interest – Opinion 49, Opinion 94, Opinion 111
                        Share with other businesses – 58
            Dual profession, practice of – Opinion 11, Opinion 109
                        Shingle
                                    At office – 3
                                    At residence – 26
LAY INTERMEDIARIES
            See also, Division of Fees
            Collection agency – Opinion 36, Opinion 37
            Real estate transaction – 33
LEGAL AID SOCIETY
            Advertising availability of services – 59
            Represent both sides in civil case – 86
LETTERHEAD
            List dual profession – Opinion 11, Opinion 109
            List firm member on indefinite leave of absence or teaching appointment – 52
            Use of name of administrative assistant to U.S. Congressman – 68
MUNICIPAL ATTORNEY
            See Public Office
OF COUNSEL
            Use of – 52
OFFICE
            See Law Office
OFFICE SHARING
            See Law Office
OPPOSING PARTY
            See Adverse Party
PARTNERSHIP
            Covenants not to complete – 108
            Non-existent
                        Held out as real – 29
            Removal of files and division of fees with attorney-employee who leaves firm – 44
            Use of deceased or former partner’s name – 29
POLITICAL ACTIVITY
            Judicial campaign
                        Contacting attorneys for support and endorsement for appointment to higher judicial office – 20
                        Contributions and endorsements by lawyers – 101
                        Candidate’s expression of rightness or wrongness of Supreme Court opinion – 1
PROFESSIONAL CALLING CARDS
            See Advertising
PROFESSIONAL SERVICE CORPORATION
            See Law Firm
PROSECUTING ATTORNEY
            See Public Office
PUBLIC DEFENDER
            See Public Office
PUBLIC OFFICE
            Attorney general
                        Represent Industrial Commission as hearing officer and as advisor to Industrial Special Indemnity Fund – 81
                        Represent opposing entities of state government in active litigation – 91
                        Represent plaintiff mother and state department in paternity proceedings – 71
                        Represent private client in action against state – 74
            County prosecutor
                        As municipal attorney – 60
                        Defending criminal cases – Opinion 10, Opinion 50, Opinion 53, Opinion 77
                        Judge, all to study in office – 12
                        Law firm office in courthouse – 16
                        Represent deputy sheriff and insurer in suit against county – 31
                        Represent private client in civil action against the state – 74
                        Involving same facts as a criminal prosecution – Opinion 18, Opinion 32, Opinion 43
                        When deputy prosecutor, in different law firm, represents the opposing party – 28
                        Father of, defending criminal client – 113
                        Spouse as Deputy Clerk, Auditor and Recorder – 64
                        Threat of criminal action regarding property he owns – 54
                        Government tax attorney
                                   Advise private clients in tax planning – 9
            Municipal attorney
                        As county prosecutor – 60
                        Defending criminal cases
                                    Civil duties only – 90
                                    Criminal prosecution duties –Opinion 41, Opinion 50, Opinion 51, Opinion 53, Opinion 77, Opinion 85, Opinion 105
                        Division of fees with lawyer – 30
            Public defender
                        Engage in civil practice as member of firm – 100
                        Partner represents paid clients in criminal matters – Opinion 55, Opinion 84
                        Represent private client in action against county – 76
            Spouses hold different public offices – 64
            Use of name in law firm name – 16
            Village trustee
                        Represents private client against village – 25
            Zoning board member
                        Duty to disclose representation of professional society of homebuilders – 69
PUBLICATIONS
            See Advertising
REAL ESTATE BROKER
            Lawyer acting as – 4
REAL ESTATE TRANSACTION
            Personal contact with client – 33
SHINGLE
            See Law Office
SOLICITATION
            Legal business
                        By auction – 111
                        Private lawyer referral system – 114
                        By bid – 62
                        By life insurance agent/friend – 9
                        For adoption services – 107
                        To serve as Public Defender – 99
SPLITTING OF FEES
            See Division of Fees
STATUTE OF LIMITATIONS
            Suit, filing after statute has run – 13
SUBSTITUTION OF COUNSEL
            Substituted counsel, unpaid fee – 27
            Substituting counsel
                        Duty with respect to fee of discharged counsel – 27
TELEPHONE DIRECTORY
            See Advertising
THREAT OF CRIMINAL ACTION
            By attorney – 54
TRIAL CONDUCT
            Criminal
                        Disclosure of defendant’s identity at trial – 106
TRIAL PUBLICITY
            Attorney’s duty regarding public disclosures by client – 92
UNAUTHORIZED PRACTICE OF LAW
            Collection agency – Opinion 36, Opinion 37
            Real estate transaction 33
UNPROFESSIONAL CONDUCT
            Sexual misconduct with client – 79
WILL
            Disclosure of contract to will after death of both parties – 75
WITHDRAWAL
            See Substitution of Counsel
            Client deliberately disregards fee agreement – 86
            Member of firm is witness – 15
WITNESS
            Attorney as
                        Acceptance of employment if obvious that attorney ought to be called as witness – 83
                        Cooperation with substituting counsel in preparation of pleadings – 83
                        For opposing party – 61
                        Necessity of withdrawal – 15
            Interviewing of
                        For opposing side – 22
            Fee for finding – 104
ZONING
            Board member has duty to disclose representation of professional society of homebuilders - 69