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Ethically Speaking Who Can You Rely On?: by Charles Slanina, Esquire As even a casual reader of this column knows, much
of my current practice consists of disciplinary defense, advice
and advisory opinions on professional responsibility matters.
Once given, there is no way of knowing where that opinion will
end up. My written advisory opinion may be quoted or cited by
someone other than the person who paid me to give it. Can someone other than the client claim good faith
reliance on the advice of counsel? This question could arise in
a number of circumstances. Delaware attorneys are often asked
to give written opinions on issues of Delaware law. Of course,
this begs the question as to whether reliance upon a lawyer’s
advice is a defense in the first place. For example, reliance
on the advice of counsel may be a defense to claims of willful
patent infringement. That reliance may not be an absolute bar
to charges of negligent or unlawful conduct except in malicious
prosecution cases. It may, however, be relevant evidence with
respect to punitive damage claims. Sheetz v. Bowles, Rice,
McDavid, Graff & Love PLLC, 547 S.E.2d 256 (W. Va. 2001).
In the disciplinary context, advice of counsel would
likely go to state of mind. It is certainly strong evidence of
exercise of due diligence in making a determination as to whether
or not conduct constitutes a violation of the Delaware Professional
Conduct Rules. Although not specifically enumerated as a mitigating
factor in the ABA Standards For Imposing Sanctions, I believe
that justifiable and reasonable reliance on advice of counsel
would be given due weight by the Board on Professional Responsibility
and the Delaware Supreme Court in determining an appropriate sanction
if they concluded that the state of mind evidence did not negate
the violation. If the defense of “advice of counsel”
is limited to an equitable good faith defense, shouldn’t
the question be whether the reliance on the lawyer’s advice
was reasonable under the circumstances rather than whether, by
law, there was an actual attorney-client relationship between
the attorney issuing the opinion and the party using that opinion?
The question of reasonableness would seem to hinge on how closely
the opinion addressed the facts and circumstances at issue. There
does not seem to be much relevance as to the relationship between
the issuer of the opinion and the person seeking to rely upon
it. For example, both the ABA and the Delaware State
Bar Association issue ethics advisory opinions. That advice is
issued without the formation of any attorney-client relationship
and is clearly intended to be both shared and relied upon by third
parties to the original advice. Reliance on such opinions is clearly
intended to be a safe harbor of good faith. Although the lack of privity between end users of
the opinion and the attorney who authored it would seem to preclude
a tort claim against the issuer should the opinion prove to be
unsound, this may not be an absolute. Section 552 of the Restatement
(Second) of Torts (1977) imposes a duty of care upon a professional
issuing an advisory opinion if the issuer knows that opinion will
be used in subsequent or similar transactions. See First National
Bank of Bluefield v. Crawford, 386 S.E.2d 310 (W. Va. 1989).
This potential and somewhat vicarious liability back to non-clients
of the attorney issuing the advisory opinion would seem to suggest
some support for the proposition that a non-client may rely on
the opinion of someone else’s lawyer. As usual, California would appear to take a contrary
position. In Weaver v. Superior Court, 95 Cal. App 3d
166 (1979), the court found that an attorney does not owe a duty
of care to adverse third parties in litigation. The defendant
doctor in a medical malpractice suit attempted to sue the plaintiff’s
attorney for negligence in filing the malpractice claim. The defendant
alleged that the adversary’s attorney was liable for failure
to reasonably investigate the facts and applicable law before
filing. The plaintiff alleged a causal connection between the
attorney’s conduct and the damages sustained by the doctor
including the cancellation of his malpractice insurance and the
financial burden of defending the malpractice claim. The court acknowledged that the standard analysis
is whether a duty of care is owed to a foreseeable third party.
However, the court weighed applying that standard to the attorney
against the result that the attorney would be placed in a position
where his interests would conflict with his own client’s
interests. In deciding that a third party could not sue an attorney
for the advice the attorney gave his client, the court concluded
that the risk of restricting the public’s right to effective
assistance of counsel trumps the individual’s right to sue.
Personally, I would like to see the California view
prevail. My own self interests support the idea that each person
who receives my advice should pay a fee – especially if I
am going to incur potential liability from unintended beneficiaries
of that advice. I suspect that most attorneys would like to get
paid by each user of their intellectual product. I also suspect
that the original client who contracted for the opinion may resent
subsequent free riders. Trash should be recycled. Legal opinions
should not.
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