Oregon State Bar Bulletin FEBRUARY/MARCH 2002

Bar Counsel
Tri State Practice:
Charting a course for ethical practice under the new reciprocity admission rule
By George A. Riemer

Idaho, Oregon and Washington lawyers may now apply for admission to practice in any of the other two states they are not currently licensed to practice law in without having to take and pass the bar examination of the new state or states. With the advent of tri-state reciprocity, the question arises, what ethics rules apply to the conduct of a lawyer actively practicing in two or all three states? This article will briefly identity and discuss the key differences in the ethics rules of the three states and will also discuss the choice of law rules that apply to ethics rules.

DISCIPLINARY RULES IN IDAHO, OREGON AND WASHINGTON
First off, Oregon uses the format of the disciplinary rules of the old ABA Model Code of Professional Responsibility. Both Idaho and Washington use the format of the current ABA Model Rules of Professional Conduct. Thus, Idaho and Washington's rules are quite similar to each other in format. The format of Oregon's rules is quite different. The Oregon State Bar Legal Ethics Committee is now studying the ABA's proposed changes to its model rules and will be considering whether Oregon should switch to the ABA format (and thus the format of Idaho and Washington's rules).

Moving to the substance of the three states' disciplinary rules, the following are some of the key differences. I say 'some,' because a comprehensive comparative analysis of all three codes would not fit this column. And note that the rules I mention below may have more elements than the ones I have highlighted. This article is merely an overview of some of the major differences in the three codes, not a definitive analysis.

SOME KEY COMPARISONS CONCERNING IDAHO AND WASHINGTON'S DISCIPLINARY RULES
1. Idaho and Washington Rule 1.5(c) require that contingent fee agreements be in writing and disclose various things and that lawyers provide their clients with a written statement showing the outcome and the remittance to the client and method it was determined. Oregon has a statute that covers the things lawyers must disclose in and concerning contingent fees agreements in cases arising out of bodily injury, death or property damage (ORS 20.340). The Oregon Code of Professional Responsibility does not, itself, require contingent fee agreements to be in writing.

2. Idaho and Washington lawyers in different firms can only divide fees if the division is in proportion to the services performed by each lawyer or if, by written agreement with the client, each lawyer assumes joint responsibility for the representation (Idaho and Washington Rules 1.5(e)), but Washington's rule also permits lawyers to divide their fees with authorized lawyer referral services. Oregon's DR 2-107(A) allows lawyers in different firms to divide fees without regard to the services performed by each lawyer so long as the client consents to the employment of the other lawyer after full disclosure that a division of fees will be made. The total fee of the lawyers in Idaho and Washington must be reasonable. In Oregon, the total fee must not clearly exceed reasonable compensation.

3. Idaho Rule 1.5(f) requires lawyers to provide clients, on reasonable request and without charge, an itemization of all hourly charges, costs, interest assessments and past due balances. Oregon and Washington do not have this specific requirement, but Washington Rule 1.5(b) provides, in part, that '[u]pon the request of the client in any matter, the lawyer shall communicate to the client in writing the basis or rate of the fee.'

4. Idaho and Washington Rule 1.8(d) prohibit a lawyer from making or negotiating an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to his or her representation of a client prior to the conclusion of that representation. Oregon does not have a comparable rule.

5. The rules on advancing expenses of litigation on behalf of clients are somewhat different in the three states. Compare Idaho Rule 1.8(e), Washington Rule 1.8(e) and Oregon Rule 5-103(B).

6. Washington Rule 1.8(k) and Oregon Rule 5-110 restrict sexual relations with clients. Idaho does not have a comparable rule.
7. Idaho and Washington's conflict of interest rules use different terminology than Oregon's rules. This is a topic worthy of an entire article. I cannot do justice to it in this overview.

8. All three states allow screening of conflict situations in successive government and private employment and successive judicial service and private employment (Idaho and Washington Rules 1.11). Oregon and Washington also allow screening in successive law firm to law firm employment situations (Oregon Rule 5-105(H) and (I), and Washington Rule 1.10(b)).

9. Idaho and Washington Rule 1.12(b) deal with lawyer judicial clerks negotiating employment with parties or attorneys who are involved in matters in which the clerks are participating personally and substantially.
10. Idaho Rule 1.13 sets forth detailed rules concerning a lawyer's ethical duties in representing an entity as a client. Oregon and Washington do not have comparable rules.

11. Idaho Rule 1.17 and Oregon Rule 2-111 permit lawyers to sell their practices following certain rules. Washington does not have a comparable rule though WSBA Formal Ethics Opinion 192 (1996) permits such sales as well.

12. Idaho and Washington Rules 2.2 allow lawyers to serve as intermediaries between clients subject to certain requirements. Oregon's Rule 5-106 on mediation is quite a bit different.

13. Idaho and Washington have rules (Rule 2.3) on lawyers undertaking to provide evaluations affecting a client for the use of someone other than the client. Oregon has no comparable rule.

14. Idaho's pretrial publicity rule (Rule 3.6) contains a list of things lawyers can say concerning pending litigation though the principal rule concerning pretrial publicity is quite comparable to Washington Rule 3.6 and Oregon Rule 7-107. Washington's rule includes 'Guidelines for Applying RPC 3.6.'

15. Idaho, Oregon and Washington's lawyer as witness rules are not identical. Compare Idaho Rule 3.7, Washington Rule 3.7 and Oregon Rule DR 5-102.

16. A portion of Idaho Rule 4.4 on respecting the rights of third parties has no parallel in either Washington or Oregon's rules (dealing with conduct intending to appeal to or engender bias against a person on account of gender, race, religion, national origin or sexual preference).

17. Idaho and Washington Rules 5.2(b) allow subordinate lawyers to rely on a supervisory lawyer's reasonable resolution of an arguable question of professional duty. Oregon's rules do not include this provision.

18. Idaho and Washington have rules requiring lawyers not to decline court appointments to represent clients except for good cause (Rule 6.2). Oregon does not have a comparable rule.

19. Idaho Rule 7.3 prohibits soliciting cases arising from accidents or disasters within 30 days of the accident or disaster. Neither Oregon nor Washington has a comparable restriction. Idaho's rule also imposes other requirements on advertising and solicitation not found in Oregon or Washington's rules, including filing copies of written communications to prospective clients with the Idaho State Bar.

20. Idaho Rule 7.5 and Washington Rule 7.4 prohibit lawyers from indicating they are specialists or are certified to practice law in a particular area except as provided in those rules. Oregon does not have a comparable rule.

21. Idaho Rule 8.5 asserts disciplinary jurisdiction over lawyers who practice law in Idaho even if they are not licensed to practice in Idaho. Oregon Rule of Procedure 1.4(a) and Washington Rule 8.5 only cover their bar members and lawyers specially admitted (pro hac vice) to practice law in each state.

OREGON
Oregon has a few disciplinary rules that have no counterparts in Idaho and Washington. They include the following:

1. A rule on the entity forms that lawyers can use for law practices (DR 1-104).

2. A rule that allows lawyers to threaten criminal prosecution under certain circumstances (DR 7-105).

3. A new rule allowing lawyers to give advice on and supervise lawful covert investigations of violations of civil or criminal law or constitutional rights (DR 1-102(D)).

CHOICE OF LAW CONCERNING DISCIPLINARY RULES
Let's say you have been practicing in Oregon for five years and decide to join the Washington State Bar under the new reciprocity admission procedure. Upon admission there, you undertake to represent an Oregon resident concerning an auto accident she had in Vancouver. Negotiations with the putative defendant (a small company which sells exercise equipment; one of its employees ran into your client while delivering a piece of exercise equipment to a customer) have broken down so you file a lawsuit against the company in Clark County Superior Court. In discovery, you learn that employees of the company have had a string of accidents. Some of those employees are no longer with the company. You decide to contact those individuals directly without thinking it necessary to get permission from the company's lawyer. She complains to the Oregon State Bar and Washington State Bar Association about your contacting those former employees. Which disciplinary rules apply to resolve this complaint, Oregon or Washington's or both? Change the facts to your contacting the former employees of the company while you are negotiating the claim, pre-lawsuit, with the company's lawyer. Which disciplinary rules apply?

Oregon has a specific choice of law rule regarding disciplinary rules. Oregon Bar Rule of Procedure 1.4 provides as follows:

Rule 1.4 Jurisdiction;
Choice of Law.

* * *
(b) Choice of Law. In any exercise of the disciplinary authority of Oregon, the rules of professional conduct to be applied shall be as follows:

(1) For conduct in connection with a proceeding in a court before which an attorney has been admitted to practice, either generally or for purposes of that proceeding, the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and
(2) For any other conduct,

(A) If the attorney is licensed to practice only in Oregon, the rules to be applied shall be the Oregon Code of Professional Responsibility and the Bar Act; and

(B) If the attorney is licensed to practice in Oregon and another jurisdiction, the rules to be applied shall be the rules of the jurisdiction in which the attorney principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the attorney is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

Idaho and Washington do not have a comparable rule.
The likely result under the two scenarios set forth above? Washington's disciplinary rules will apply to the first scenario because the interviews are related to the litigation pending in Clark County Superior Court. Under scenario two, Oregon's disciplinary rules would likely apply because the lawyer principally practiced in Oregon though an argument could be made that if the interviews took place in Washington the predominant effect of the lawyer's conduct would be in Washington and that Washington's disciplinary rules should therefore apply. I will not analyze whether Oregon and Washington's disciplinary rules on contact with represented persons would lead to different results concerning the two ethics complaints though my quick reaction would be that they both would be dismissed since the applicable rules in both states (Washington Rule 4.2 and Oregon Rule 7-104(A)(1)) permit direct contact with former employees of a corporate defendant.

It would be worthwhile for Idaho and Washington to adopt choice of law rules in this area and this would be a good topic of discussion between the three state bars.

CONCLUSION
With the advent of admission reciprocity between Idaho, Oregon and Washington, more lawyers than ever will be engaging in the lawful multi-jurisdictional practice of law. New multistate practitioners will need to pay attention to which disciplinary rules apply to their conduct. As new multistate practitioners begin to grapple with these questions, the Idaho, Oregon and Washington State Bars should jointly study bringing their disciplinary rules into greater harmony with each other than currently exists and the adoption of a uniform choice of law rule for disciplinary rule violations. Are there good reasons for having different ethical standards regarding the same conduct between the three states?

ABOUT THE AUTHOR
George A. Riemer is general counsel of the Oregon State Bar. Reach him at (503) 620-0222, ext. 405, or griemer@ osbar.org.

2002 George A. Riemer

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