Nothing. It is one thing to pick socks that don’t match. It is another to haul out an ethics opinion that does not match (is not consistent with) the Rules of Professional Conduct (or other law) in effect at the time of the conduct at issue in an effort to justify past or future conduct. When thinking through an issue involving legal ethics, we suggest these steps:
1. Know the relevant facts. The first version will almost certainly be if not wrong then incomplete.
2. Identify the applicable law, including but not limited to, the applicable Rules of Professional Conduct.
3. Look for support for your position, including but not limited to ethics opinions, that so far as possible matches your facts and is consistent with the applicable law, including but not limited to the Rules of Professional Conduct.
4. Repeat steps 1 – 3 until you’ve done your best “to get it right.”
Practice Tip: The older an ethics opinion is the more carefully one must compare it to the applicable law, including the Rules of Professional Conduct. For example, it would be useless, a professional embarrassment and possibly worse to cite as justification for one’s actions in 2008 an ethics opinion from 1983 that conflicts with the 2008 Rules of Professional Conduct.