stbrru4_223

stbrru4_223 2017-07-18T21:34:36+00:00

Atlanta May 1, 2002

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

It is ordered that Rule 4-223 of the Rules and Regulations for the Organization and Government of the State Bar be amended, effective July 1, 2002, to read as follows:

Rule 4-223. Advisory Opinions

(a) Any Formal Advisory Opinion issued pursuant to Rule 4-403 which is not thereafter disapproved by the Supreme Court of Georgia shall be binding on the State Bar of Georgia, the State Disciplinary Board, and the person who requested the opinion, in any subsequent disciplinary proceeding involving that person. Formal Advisory Opinions which have been approved or modified by the Supreme Court pursuant to Rule 4-403 shall also be binding in subsequent disciplinary proceedings which do not involve the person who requested the opinion.

(b) It shall be considered as mitigation to any grievance under these rules that the respondent has acted in accordance with and in reasonable reliance upon a written Informal Advisory Opinion requested by the respondent pursuant to Rule 4-401 or a Formal Advisory Opinion issued pursuant to Rule 4-403, but not reviewed by the Supreme Court of Georgia.

It is further ordered that Rule 4-401 be amended to read as follows:

Rule 4-401. Informal Advisory Opinions

The Office of the General Counsel of the State Bar of Georgia shall be authorized to render Informal Advisory Opinions concerning the Office of the General Counsel’s interpretation of the Rules of Professional Conduct or any of the grounds for disciplinary action as applied to a given state of facts. The Informal Advisory Opinion should address prospective conduct and may be issued in oral or written form. An Informal Advisory Opinion is the personal opinion of the issuing attorney of the Office of the General Counsel and is neither a defense to any complaint nor binding on the State Disciplinary Board, the Supreme Court of Georgia, or the State Bar of Georgia. If the person requesting an Informal Advisory Opinion desires, the Office of the General Counsel will transmit the Informal Advisory Opinion to the Formal Advisory Opinion Board for discretionary consideration of the drafting of a Proposed Formal Advisory Opinion.

It is further ordered that Rule 4-403 (a), (d), and (e) be amended to read as follows:

(a) The Formal Advisory Opinion Board shall be authorized to draft Proposed Formal Advisory Opinions concerning a proper interpretation of the Rules of Professional Conduct or any of the grounds for disciplinary action as applied to a given state of facts. The Proposed Formal Advisory Opinion should address prospective conduct and may respond to a request for a review of an Informal Advisory Opinion or respond to a direct request for a Formal Advisory Opinion.

(d) After the Formal Advisory Opinion Board makes a final determination that the Proposed Formal Advisory Opinion should be drafted and filed, the Formal Advisory Opinion shall then be filed with the Supreme Court of Georgia and republished in an official publication of the State Bar of Georgia. Unless the Supreme Court grants review as provided hereinafter, the opinion shall be binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court, which shall treat the opinion as persuasive authority only. Within 20 days of the filing of the Formal Advisory Opinion or the date the publication is mailed to the members of the Bar, whichever is later, the State Bar of Georgia or the person who requested the opinion may file a petition for discretionary review thereof with the Supreme Court of Georgia. The petition shall designate the Formal Advisory Opinion sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved. If the Supreme Court grants the petition for discretionary review or decides to review the opinion on its own motion, the record shall consist of the comments received by the Formal Advisory Opinion Board from members of the Bar. The State Bar of Georgia and the person requesting the opinion shall follow the briefing schedule set forth in Supreme Court Rule 10, counting from the date of the order granting review. The final determination may be either by written opinion or by order of the Supreme Court and shall state whether the Formal Advisory Opinion is approved, modified, or disapproved, or shall provide for such other final disposition as is appropriate.

(e) If the Supreme Court of Georgia declines to review the Formal Advisory Opinion, it shall be binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court, which shall treat the opinion as persuasive authority only. If the Supreme Court grants review and disapproves the opinion, it shall have absolutely no effect and shall not constitute either persuasive or binding authority. If the Supreme Court approves or modifies the opinion, it shall be binding on all members of the State Bar and shall be published in the official Georgia Court and Bar Rules manual. The Supreme Court shall accord such approved or modified opinion the same precedential authority given to the regularly published judicial opinions of the Court.

It is further ordered that Rule 14-9.1 (g) (2), (3), and (4) be amended to read as follows:

(2) In the case of any proposed advisory opinion in which the Standing Committee concludes that the conduct in question constitutes or would constitute the unlicensed practice of law, the Committee shall file a copy of the opinion and all materials considered by the Committee in adopting the opinion with the clerk of the Court. The advisory opinion, together with notice of the filing thereof, shall be furnished by certified mail to the petitioner. Unless the Court grants review as provided hereinafter, the opinion shall be binding only on the Committee, the State Bar of Georgia, and the petitioner, and not on the Supreme Court, which shall treat the opinion as persuasive authority only.

(3) Within 20 days of the filing of the Advisory Opinion or the date the publication is mailed to the members of the Bar, whichever is later, the State Bar of Georgia or the petitioner may file a petition for discretionary review thereof with the Court, copies of which shall be served on the Committee. The petition shall designate the Advisory Opinion sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved. If the Court grants the petition for discretionary review or decides to review the opinion on its own motion, the record shall consist of the comments received by the Committee. The State Bar of Georgia and the petitioner shall follow the briefing schedule set forth in Supreme Court Rule 10, counting from the date of the order granting review. The Committee may file a responsive brief, and any other interested person may seek leave of the Court to file and serve a brief, whether in support of or in opposition to the opinion. Oral argument will be allowed at the Court’s discretion. The Rules of the Supreme Court of Georgia shall otherwise govern the methods of filing, service, and argument. The final determination may be either by written opinion or by order of the Supreme Court and shall state whether the Advisory Opinion is approved, modified, or disapproved, or shall provide for such other final disposition as is appropriate.

(4) If the Court declines to review the Advisory Opinion, it shall be binding only on the Committee, the State Bar of Georgia, and the petitioner, and not on the Supreme Court, which shall treat the opinion as persuasive authority only. If the Court grants review and disapproves the opinion, it shall have absolutely no effect and shall not constitute either persuasive or binding authority. If the Court approves or modifies the opinion, it shall constitute binding precedent and shall be published in the official Georgia Court and Bar Rules manual. The Supreme Court shall accord such approved or modified opinion the same precedential authority given to the regularly published judicial opinions of the Court. There shall be no further review of the opinion except as granted by the Supreme Court in its discretion, upon petition to the Supreme Court.

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