Rewriting our disciplinary rules
By Sylvia E. Stevens
The OSB Board of Governors is seeking member comment about whether to replace the Oregon Code of Professional Responsibility with a new set of rules based on the ABA Model Rules of Professional Conduct. The board will decide in June whether to put the proposal on the agenda for the 2003 House of Delegates.1
The proposal is the work of the Special Legal Ethics Committee on Disciplinary Rules (the Rules Committee), appointed by the Board of Governors in August 2001. The ABA’s Ethics 2000 Commission had completed a comprehensive review and made numerous recommendations for amendments to clarify and update the 18-year-old Model Rules. The Board of Governors similarly recognized that it was time for a thorough study of the adequacy of the Oregon Code to regulate lawyer conduct in a new century. The board directed the Rules Committee to review the E2K report and identify any recommendations that should be incorporated into Oregon’s code.
The Oregon Code of Professional Responsibility was adopted in 1970, patterned after the former ABA Code of Professional Responsibility. The last comprehensive review of the Oregon Code was in 1985, in response to the ABA’s 1983 adoption of the Model Rules of Professional Conduct in place of the ABA Code. In 1986, the Oregon Supreme Court adopted wide-ranging amendments approved by the membership, many of which incorporated concepts or actual language of the Model Rules. In the ensuing 17 years, additional changes have been made to the Oregon Code on an as-needed basis; many of those changes were also based on the Model Rules.
During that same 17-year period, the practice of law has changed dramatically. Bar membership has more than quadrupled; new practice areas have emerged; technology has altered the way lawyers communicate with each other and with clients; changing client expectations have reshaped the way legal services are delivered and cross-border (multi-jurisdictional) practice is increasingly commonplace.
The Rules Committee began with the idea of 'cutting and pasting' desired provisions of the Model Rules into the Oregon Code. The deficiencies of that approach became clear quickly, because of differences in structure, format and phrasing between the two sets of rules. The Rules Committee was also concerned that correlation between the Oregon Code and the Model Rules was difficult, rendering nearly useless the official Comment to the Model Rules and the great body of interpretive authority based on the Model Rules.
Further discussion at this juncture resulted in the Rules Committee identifying a variety of reasons to support migration to some version of the Model Rules including that: the Model Rules and the Oregon Code have few significant differences, so that a change would be principally in form rather than substance; cross-border practices issues will be easier to resolve if we follow the same rules as our reciprocity partners (Washington and Idaho); there is a sizeable body of helpful interpretive law for the Model Rules that would be beneficial to Oregon lawyers and an increasing number of Oregon lawyers are familiar with the Model Rules and would not be unsettled by a change.
Three developments during the review process reinforced the Rules Committee’s view that Oregon should join the steady march toward the ABA Model Rules. First, Oregon was invited to join Washington and Idaho in a joint study looking at making the rules of the three states more uniform. Second, the House of Delegates adopted a resolution that the Oregon Code be studied for ways to make it simpler and clearer. Finally, the Rules Committee noted that Tennessee recently became the 44th state to adopt a version of the Model Rules in place of its Code-based rules and that New York is expected to do the same, which will make Oregon one of only five jurisdictions adhering to the old Model Code structure.
Having concluded that the Model Rule approach was the better one for Oregon, the Rules Committee then compared each Model Rule with its analogous Oregon provision and determined which version to recommend. The committee was guided in this process by three occasionally competing values: uniformity; retention of provisions that are unique to Oregon or special in some other way; and having the best-written rule. Achieving the goal of uniformity generally meant adopting the Model Rule language unless there was a compelling reason to retain the Oregon language, such as where the Oregon rule had recently been adopted or amended, or where the Oregon rule was clearer or offered better guidance. The Rules Committee endeavored to avoid following the Model Rules slavishly, while at the same time not departing from them lightly.
Following is a brief summary of the more significant changes between the Oregon Code and the proposed Oregon Rules of Professional Conduct:
- Style and format — rules are numbered 'X.X' rather than 'X-X0X;' they are grouped differently; the name is changed; and there are subtle stylistic differences.
- Conflicts of interest — the analytical approach is slightly different, but the outcome of conflicts questions will be the same under the new rules as under the Code; current and former client conflicts are addressed in separate rules; there are special conflict rules for government lawyers and for former judges and third-party neutrals; a variety of self-interest conflicts are compiled into a single rule.
- Informed consent — the Code concept of 'consent after full disclosure' is replaced with a requirement for informed consent, which means adequate information about material risks and reasonably available alternatives.
- Trial publicity — the proposed rule is more detailed and provides clearer guidance about the kinds of statements that are permitted.
- Special responsibilities of a prosecutor — the proposed rule is more expansive than the existing rule and imposes ethical obligations that are more protective of defendants than the constitution might require.
- Unauthorized practice of law — the proposed rule contains specific guidelines about the circumstances under which an out-of-state lawyer can engage in the practice of law in Oregon.
- Choice of law — this rule is being moved from the bar Rules of procedure; it will govern the disciplinary rules that apply to multi-state practice issues.
The proposed Oregon Rules of Professional Conduct also contain a number of provisions that have no counterpart in the Oregon Code:
Rule 1.2 allows for limited-scope representations.
Rule 1.4 requires communication with clients.
Rule 1.6(b)(3) allows disclosure of client information to obtain advice about the lawyer’s own ethical conduct.
Rule 1.8(h)(4) prohibits agreements limiting the client’s right to file a bar complaint.
Rule 1.13 governs the obligations of lawyer representing organizations as clients.
Rule 1.14 clarifies the obligations of lawyers representing clients with diminished capacity.
Rule 1.18 addresses the duties to a prospective clients.
Rule 3.2 requires reasonable efforts to expedite litigation.
Rule 3.3(d) requires disclosure to the tribunal in ex parte proceedings of all material facts.
Rule 4.4(b) requires notice to the sender of an inadvertently sent document.
Rule 5.1 requires law firms to establish measures to assure that all firm members comply with the disciplinary rules.
Rule 5.3 requires lawyers to establish measures to assure that the conduct of nonlawyer assistants is compatible with the duties of lawyers under the rules.
Rule 6.1 encourages public interest legal service.
Rule 6.5 limits the conflict risks that discourage representation of clients through nonprofit legal service programs.
Rule 8.3 requires lawyers to report judicial misconduct.
The full Report of the Rules Committee and the proposed Oregon Rules of Professional Conduct can be found on the bar’s web site at www.osbar.org. The Rules Committee will be meeting in May to review member comment and suggestions about the proposal and to prepare a final recommendation for the Board of Governors. If you would like to offer comments or suggestions about the proposal, please submit them in writing to the author.
ABOUT THE AUTHOR
Sylvia E. Stevens is assistant general counsel of the Oregon State Bar. Reach her by e-mail at firstname.lastname@example.org or by regular mail to the OSB office, or by telephone at (503) 620-0222, ext. 359.
1. ORS 9.490(1): The board of governors, with the approval of the house of delegates given at any regular or special meeting, shall formulate rules of professional conduct, and when such rules are adopted by the Supreme Court, shall have power to enforce the same. Such rules shall be binding upon all members of the bar.
© 2003 Sylvia E. Stevens