Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Office of Ethics Counsel Provides Important Member Benefit

By Joe Balkenbush

I have served as ethics counsel now for two months, and man, has time flown! Every day I learn something new.

ABOUT ETHICS COUNSEL

The position of ethics counsel was created in 2002 when OBA leadership (Supreme Court justices, Board of Governors and the Executive Director John Morris Williams) saw there was a need for bar members to have access to a resource that could answer ethical questions in a timely manner. Leadership believed that by being proactive, many of the issues attorneys faced through their interaction with clients, third parties and/or other attorneys could be avoided. Prior to 2002, the Office of the General Counsel answered all of the ethics questions posed by members.

Most of my time is spent answering ethical questions from bar members. Some days
I might receive up to 20 phone calls. All communication with the Office of Ethics Counsel is confidential and privileged. A record is kept of all calls by name and member number, along with a brief synopsis of the facts presented and the advice given. If a grievance is filed, the attorney can inform the Office of the General Counsel that ethics counsel was consulted regarding the matter, which can be a mitigating factor when determining what to do with the grievance filed.

The Office of Ethics Counsel is only a resource for OBA members, not the general
 public.

Gina Hendryx, OBA general counsel, was the first ethics counsel. She served as ethics counsel from 2002 to 2008, when she was selected for the position of general counsel, replacing Dan Murdock.

Travis Pickens was selected to serve as the next ethics counsel. He served from 2008 to February 2015. The most common question I have answered over the last month is “where is Travis Pickens?” He has returned to private practice, but I would like to take this opportunity to thank him for his generous
service to the OBA. Travis, many, many thanks to you
from all of us!

It is my honor to be the third ethics counsel for the OBA. When I learned Mr. Pickens was leaving the position, I decided to apply and was notified that I was one of the finalists and was informed of the date and time of my interview with the hiring committee. It occurred to me then that it would be a good idea to review the Rules of Professional Conduct and Rules Governing Disciplinary Proceedings. Honestly, it had probably been since law school that I had read them.

As I am sure all of you
 know, the Rules of Professional Conduct and Rules Governing Disciplinary Proceedings are statutory. They can be found in Title 5 of the Oklahoma Statutes. You’ll find the Rules of Professional Conduct in Appendix 3-A and the Rules Governing Disciplinary Proceedings in Appendix 1-A. Online find Title 5 at http://goo.gl/8oZsUl.

WORDS TO THE WISE

As I was reviewing the preamble to the Rules of Professional Conduct, I was reminded of why I became an attorney. I imagine it was for the same reasons most of you did, to help and be of service to others.

Here are some “words to the wise”:

  • All client funds must be deposited in your trust account. Fees must be earned before they are transferred from your trust account to your operating account.
  • Remove the word “nonrefundable” from your fee agreements. There is no such thing as a “nonrefundable” retainer. See OBA v. Weigel, 2014 OK 4, 321 P.3d 168 (Okla. 2014)

Mr. Balkenbush is OBA Ethics Counsel. Have an ethics question? It’s a member benefit and all inquiries are confidential. Contact Mr. Balkenbush at joeb@okbar.org or 405-416-7055; 800-522-8065.

Originally published in the Oklahoma Bar Journal -- May 16, 2015 -- Volume 86, No. 14.