Top 10 changes in the new Rules of Professional Conduct
By George A. Riemer
David Letterman has his top 10 list, and so do I — regarding the new Oregon Rules of Professional Conduct. I am not going to go into a lot of detail in this column, as I hope to get your attention through the mere listing of what I consider the most important changes between the old Code of Professional Responsibility and the new Rules of Professional Conduct. There are in reverse order of perceived importance. Of course, this is only my list. Others undoubtedly have their own take on the changes.
10. The definition section, Rule 1.0. Rule 1.0 contains a number of new definitions of such terms as "informed consent," "confirmed in writing," "information relating to the representation" and "tribunal." You have to pay attention to the use of these and other terms defined in the rules to ensure you have done what you need to do.
9. Explicit rule on client communication, Rule 1.4. This is new and you need to pay attention to it:
Rule 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
8. Expanded rule on conflicts of interest for current and former government lawyers, Rule 1.11. Current and former government lawyers, review this rule!
7. Reformulation of the duty to maintain client confidences and secrets, Rule 1.6. The new rule uses the phrase "information relating to the representation." This is a defined term in Rule 1.0(f). Note also that lawyers may now reveal information relating to the representation of a client to the extent they reasonably believe necessary to prevent reasonably certain death or substantial bodily injury (Rule 1.6(b)(2)) and to secure legal advice about their compliance with the rules (Rule 1.6(b)(3)).
6. Changes to the rule on withdrawing from representation, Rule 1.16. A lawyer can withdraw from representation under Rule 1.16(b)(3) if the client has used the lawyer’s services to perpetuate a crime or fraud and under Rule 1.16(b)(4) if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. Rule 1.16(d) also provides that when withdrawing, a lawyer "may retain papers, personal property and money of the client to the extent permitted by other law."
5. A new rule has been added on "Duties to Prospective Clients," Rule 1.18. Everyone in private practice really needs to review this new rule. Conflicts involving prospective clients can be dealt with by waiver or screening. See Rule 1.18(d).
4. Revisions to rule on "Dealing with Unrepresented Persons." See Rule 4.3. This rule is more than old DR 7-104(A)(2) and should be examined to ensure you don’t get tripped up when dealing with unrepresented persons.
3. New rules of practicing law across state lines. See Rule 5.5. While this rule benefits out-of-state lawyers, Idaho and California already have similar rules and Washington it working on one, too. You should spend the time to read this rule to ensure you know what out-of-state lawyers can and cannot do in Oregon. Rule 5.5(a) continues the prohibition against practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assisting another in doing so.
2. New rule on organizations as clients. See Rule 1.13. This is a new rule and a very important addition, as it frames the ethical requirements for lawyers in relation to their duties to organizational clients. A "must read" rule.
1. Reformulation of the conflict of interest rules. See Rules 1.7, 1.8, 1.9 and 1.10. If you are going to review any of the new rules, these are the ones you should read. While the end result is essentially the same as under the old rules (though note that personal interest conflicts are not now automatically imputed to other members of your firm under Rule 1.10(a)), the terminology has changed and your disclosure and consent letters should be updated to use the language of the new rules.
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OK, that’s my top 10 list. Reading these 10 new rules should go a long way in helping you meet your ethical obligations. Of course, reading the new rules from cover to cover would be better yet.
There are a few additional new rules that I would suggest you review after my top 10 list: (1) the new trust account and IOLTA rules (Rules 1.15-1 and 1.15-2); the rule on dealing with clients with diminished capacities (Rule 1.14); the new rule on dealing with misdirected faxes (Rule 4.4(b)); the new rule on trial publicity (Rule 3.6); the new rule on limiting the scope of your representation of clients (Rule 1.2(b)) and the new rule on conflicts in connection with the representation of clients under the auspices of nonprofit and court-annexed limited legal services programs (Rule 6.5).
Finally, if you invest in one book to help you interpret the meaning of the new rules, I suggest you go to the ABA’s website at www.abanet.org and purchase the latest edition of the ABA Center for Professional Responsibility’s Annotated Model Rules of Professional Conduct. To find the book, click on "store" at the top of the webpage, or click on the "publications" on the left side of the abanet.org home page. As many of our new rules are based on the ABA Model Rules, the comments and commentary regarding the comparable ABA rule will be of assistance to you in figuring out the meaning of the same rule in Oregon.
© 2005 George A. Riemer
ABOUT THE AUTHOR
George A. Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at firstname.lastname@example.org or by phone at (503) 620-0222 or toll-free in Oregon, (800) 452-8260, ext. 405.