Oregon State Bar Bulletin — AUGUST 2003

Bar Counsel

CHANGING THE RULES
Rewriting our DRs, Part II
By Sylvia E. Stevens

In January 2003, the Board of Governors released the report of the Special Legal Ethics Committee on Disciplinary Rules ('the Rules Committee') for consideration by the membership. The report recommended that the bar replace the Oregon Code of Professional Responsibility with a new set of rules derived from the ABA Model Rules of Professional Conduct.

Through the Bulletin, the OSB website and broadcast e-mail messages, the Board of Governors invited comments from members about the proposed Oregon Rules of Professional Conduct. In March and April, representatives of the Rules Committee held open forums in each region of the state to explain and discuss the proposal. In May and June, the Rules Committee met to review the comments received and to make final adjustments to the proposed ORPC.

On June 14, 2003, the Board of Governors accepted the Final Report of the Rules Committee and voted to put the proposal on the agenda for the OSB House of Delegates on Sept. 20, 2003. The board made a few additional 'housekeeping' changes to the proposal at its Aug. 1 meeting.

The Rules Committee received about two dozen written comments from individual members during the comment period. In addition, two groups, the Solo and Small Firm Practice Section and the Oregon District Attorneys Association, responded on behalf of their members. With only a few specific exceptions, most of the comment received was favorable; no one suggested that the Oregon Code should be retained, and many were very positive about joining the 44 other jurisdictions that have some version of the Model Rules.

The Rules Committee considered thoroughly all of the comments and suggestions received but ultimately made only a few changes in the proposal. Most of the changes were minor technical corrections or involved the addition of a few words to enhance clarity. Some of the suggestions and comment received related to the substance of limitations and prohibitions in existing rules; the Rules Committee declined to address those, because its charge was limited to determining whether to retain Oregon’s existing rule or adopt the corresponding or new Model Rule. The Rules Committee did not believe it had authority to recommend substantive changes in Oregon’s lawyer regulation.

The most vigorous opposition to any rule (and that which generated the most substantive change) came from the Oregon District Attorneys Association, its member district attorneys, the Oregon Department of Justice and the U.S. Attorney, all of whom voiced opposition to the adoption of Model Rule 3.8 Special Responsibilities of a Prosecutor. The Model Rule has six subparts: (a) prohibits prosecution without probable cause; (b) requires reasonable efforts to ensure that the accused is advised of his or her rights; (c) prohibits efforts to obtain a waiver of important pretrial rights from an unrepresented person; (d) requires disclosure of exculpatory and mitigating evidence at trial and sentencing; (e) prohibits subpoenaing privileged information from lawyers except where the information is essential to the prosecution and not otherwise available and (f) prohibits extrajudicial statements by a prosecutor that are likely to heighten public condemnation of the accused and requires reasonable care to prevent nonlawyers associated with the case from making statements the prosecutor is prohibited from making. Although MR 3.8(a)-(d) and the last part of (f) is the rule in 44 jurisdictions (subsections (e) and the first part of (f) are adopted in only about 10 jurisdictions), the ODAA argued that the proposed rule was impossible to comply with, inconsistent with Oregon law, contrary to public policy, beyond the prosecutors’ ability to control and would have a chilling effect on their role as legal advisors to law enforcement. After consideration of the ODAA comments, the Rules Committee voted to delete paragraphs (e) and (f) of proposed Rule 3.8 and modified (c) to clarify that it does not apply to persons appearing pro se or who have waived their rights to counsel and silence.

Another change made by the committee was in response to a suggestion by the U.S. Attorney and some others regarding Rule 4.2 Communication with Person Represented by Counsel. Rather than adopt ABA Model Rule 4.2, the Rules Committee had recommended retaining the DR 7-104 formulation, which prohibits a lawyer from communicating with a represented person on the subject of the representation or on directly related subjects. DR 7-104 is very similar to MR 4.2, which has been widely adopted. No other jurisdiction, however, has the 'directly related subjects' language. That was added to Oregon’s rule in 1984 in response to a court decision broadly defining the subject matter of a representation. The Rules Committee agreed with the commentors that the 'directly related' language adds nothing to the rule as it has been interpreted in Oregon and elsewhere and is more confusing than helpful, and voted to delete that phrase from the rule.

The amended proposal also does not include proposed Rule 6.1 Voluntary Pro Bono Publico Service. After discussion, the Rules Committee adopted the view of several members that the disciplinary rules should not include aspirational standards.

The Rules Committee carefully considered a suggestion from the Oregon Attorney General regarding proposed Rule 5.3 Responsibilities Regarding Nonlawyer Assistants, but declined to make any change. The rule requires a lawyer to exercise reasonable care to assure that the conduct of nonlawyers who assist in the rendition of the lawyer’s services is compatible with the professional obligations of the lawyer if the lawyer supervises or exercises managerial control over or ratifies the conduct of nonlawyers 'employed or retained by or associated with' the lawyer. The Attorney General expressed concern over the meaning of the terms 'associated with' and 'ratifies,' suggesting that they could make a lawyer responsible for the conduct of a nonlawyer even if the lawyer exercises no control, does not encourage the nonlawyer to engage in the conduct and the conduct is otherwise lawful. The Rules Committee found no evidence in any reported cases to validate those concerns and ultimately concluded that the meaning and scope of the rule is sufficiently clear by its plain language and as explicated in the official comment to the Model Rules and other authorities.

The final proposal of the Rules Committee includes the newest version of Model Rule 1.13 Organization as Client, as amended by the ABA House of Delegates on Aug. 12, 2003. This rule in its current form has no counterpart in the Oregon Code, but is recommended by the Rules Committee as being very helpful guidance on the obligations of lawyers who represent corporations and other organizations. The ABA’s recent amendments were a response to public criticism of lawyers following the collapse of several large publicly-traded companies, the adoption of the Sarbanes-Oxley Act and at the suggestion of the ABA Task Force on Corporate Responsibility. The Rules Committee favored the new version, finding it a clear directive to lawyers about fulfilling their obligations to entity clients.

The proposed new rules retain much of Oregon's existing code, often verbatim. It also includes some rules that are new to Oregon, including Rule 1.13, discussed above; Rule 1.18 regarding duties to prospective clients; Rule 4.4(b) requiring return of inadvertently sent documents; Rule 5.2(b) exonerating a subordinate lawyer who engages in misconduct at the direction of a supervising lawyer; and Rule 5.5 allowing temporary practice in Oregon by out-of-state lawyers.

The final report of the Rules Committee and the proposed Oregon Rules of Professional Conduct with explanatory committee notes are in the agenda packet for the September 2003 OSB House of Delegates meeting. They are also available on the OSB website at www.osbar.org. Members are encouraged to review the proposal and convey your views to one of your House of Delegates representatives. Members are also encouraged to attend the 2003 House of Delegates meeting and participate in the debate and discussion of this important change for Oregon lawyers.

ABOUT THE AUTHOR
Sylvia E. Stevens is assistant general counsel of the Oregon State Bar. Additional information can be obtained by contact her at (800) 431-6359 (inside Oregon) or (503) 431-6359 (outside Oregon).

© 2003 Sylvia E. Stevens


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