Oregon State Bar Bulletin — DECEMBER 2007
Bar Counsel
New Ethics Guidance:
A Roundup of Recent Formal Ethics Opinions
From the OSB, the ABA and More
By Sylvia Stevens

In recent months, the OSB Board of Governors has issued three OSB formal ethics opinions about which members should be aware. The ABA Standing Committee on Ethics and Professional Responsibility has also issued several opinions of interest. Although the ABA opinions interpret the ABA Model Rules of Professional Conduct, they are of value to Oregon practitioners because the Oregon RPCs are modeled closely after the ABA model rules; the official comment to the ABA rules and the ABA opinions are often cited in OSB formal ethics opinions. Following is a brief synopsis of those opinions, along with one from the California State Bar.

 

OSB Formal Ethics Op. 2007-177: Issue Conflicts
The question of "issue" or "positional" conflict arises when a lawyer represents two clients who have inconsistent positions on a legal issue. Former DR 5-105(A)(3) addressed issue conflicts expressly, making it clear that no conflict existed if the conflicting legal positions were asserted in factually unrelated cases. On the other hand, the simultaneous representation was prohibited when the lawyer actually knew that an outcome favorable to one client would adversely affect the client in the other case, unless the clients waived the conflict. The Oregon RPCs (like their ABA counterpart) don’t treat issue conflicts as a special type of conflict; rather, they are encompassed in the general prohibition of RPC 1.7(a)(1) against representing one client if the representation will be directly adverse to another of the lawyer’s clients. In contrast with the approach under former DR 5-105(A)(3), the new opinion concludes that a real issue conflict (where the lawyer knows of the assertion of conflicting positions and that an outcome favorable to one would adversely affect the other) cannot be waived by the affected clients.

OSB Formal Ethics Op. 2007-178: Excessive Caseloads
In September 2006, the House of Delegates passed a resolution requiring the Board of Governors to issue a formal opinion consistent with ABA Formal Opinion 06-441 on the ethical obligations of public defenders faced with excessive caseloads. The opinion begins with a reminder that all lawyers are required to provide competent and diligent representation to their clients, and a caseload is excessive if it will prevent the lawyer from meeting those obligations to each client. The opinion then goes on to explore the way in which the lawyer’s work environment might affect the lawyer’s ability to control the caseload and suggests options that might apply depending on whether the lawyer works in a public defender firm, is a member of a consortium, or practices solo. The obligations of supervisors and others who assign work are also discussed. The opinion concludes that lawyers representing indigent clients must refuse to accept a workload that prevents them from meeting their ethical obligation to each client; that lawyers who work in public defense organizations should seek the assistance of supervisors and managers in achieving manageable workloads; and that when those supervisors and managers have knowledge of excessive workloads among firm lawyers, they must make reasonable efforts to remedy the problem.

OSB Formal Ethics Op. No. 2007-179: Trial Publicity
Using civil and criminal case hypotheticals "ripped from the headlines," this opinion addresses the extent to which lawyers can make public comment about a pending case. The BOG acknowledged that the hypotheticals utilize extreme examples at the extreme edges of permissible conduct, but concluded that is more helpful than analyzing situations that are more common but less difficult analytically. The opinion begins with a discussion of the balance that Oregon RPC 3.6 strikes between the First Amendment rights of lawyers (and their clients) and the interest of the state in fair trials. Accordingly, RPC 3.6(a) prohibits only extrajudicial statements that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an imminent adjudicative proceeding in which the lawyer is involved, unless the statement is expressly permitted in RPC 3.6(b). The rule does not apply to lawyer-pundits who are not involved in the proceeding, nor to administrative decisions or even to judicial proceedings when the fact-finding will be done by a judge. The opinion discusses the meaning of "knows or reasonably should know," "substantial likelihood," "material prejudice" and "imminent" in the context of the specific facts of the hypothetical cases, and emphasizes that application of RPC 3.6 is very fact-specific. A statement that is impermissible in one situation may be permissible in another. No clear timeline can be drawn, but the opinion suggests that statements made well in advance of a trial will generally present less of a substantial likelihood of material prejudice than statements made on the eve of trial.

ABA Formal Op. 06-443: Contact with Inside Counsel of Represented Organization
This opinion addresses the propriety under Model Rule 4.2 of communicating with inside counsel for an organization that is represented by outside counsel in the matter. It explains that the purpose of the rule is to protect a represented person against possible overreaching by adverse lawyers, to prevent a skilled advocate from taking advantage of a nonlawyer. This purpose is achieved in the organizational context by prohibiting communications with certain constituents of the organization who consult with counsel or have authority to obligate the organization in the matter. The opinion concludes that those protections are unnecessary when the constituent of an organization is a lawyer-employee who is acting as a lawyer for the organization and who is not likely, in a lawyer-to-lawyer communication, to make damaging disclosures. However, if the inside lawyer is part of the constituent group with whom communication is prohibited, such as when the lawyer made decisions giving rise to the issues in dispute, the prohibition of Model Rule 4.2 will apply. Of course, inside counsel may avoid any contact with adverse counsel by referring the opposing lawyer to outside counsel.

ABA Formal Op. 06-444: Restrictive Covenants in Retirement Agreements
Model Rule 5.6(a) broadly prohibits agreements that restrict the right of lawyers to practice law after they terminate a relationship with a law firm or employer. A limited exception allows restrictive covenants that are in exchange for payment of retirement benefits. This opinion clarifies that a retirement benefit within the meaning of Model Rule 5.6(a) is one available only to lawyers who are in fact retiring and thereby winding down or terminating their legal careers, although an agreement would not run afoul of Model Rule 5.6(a) if it allowed the retiring lawyer to engage in public or other noncompetitive employment, such as service as a judge, an elected or appointed government official or in-house counsel for a charitable organization. True retirement benefits are normally payable upon satisfaction of minimum age and years-of-service requirements. Other indicia of legitimate retirement benefits are benefit calculation formulas, benefits that increase with years of service to the firm, benefits payable over the lifetime of a retired lawyer, and benefits that are interrelated with payments from other retirement income sources such as pensions or Social Security. The opinion cautions that the exception in Model Rule 5.6 for retirement benefits must be construed strictly and narrowly, with agreements affecting benefits available only to lawyers who are actually retiring and not resulting in a forfeiture of income already earned. "Beyond that, however, law firms and employers have significant latitude in shaping the nature and scope of the restriction on practice and the penalties for noncompliance." ABA Formal Op. 06-444 at 6.

ABA Formal Op. 07-445: Contact with Putative Members Before Class Certification
The propriety of contacting putative members in a yet-to-be certified class action suit depends on whether the putative class members are deemed to be represented by the lawyer seeking to certify the class. The client-lawyer relationship is established when a client manifests intent that a lawyer provide services, or when there is a substitute for that assent given by a court or other person authorized to act for the client. Accordingly, a client-lawyer relationship with a potential member of a class does not begin until the class has been certified and the time for opting out has expired. Prior to that time, defendant’s counsel is not barred by Model Rule 4.2 from communicating with putative class members, and plaintiff’s counsel is permitted to communicate with them subject to the limits on solicitation in Rule 7.3. Both plaintiffs’ and defense counsel must comply with Model Rule 4.3 regarding communication with unrepresented parties.

ABA Formal Op. 07-446: Undisclosed Assistance to Pro Se Litigants
State and local ethics opinions have reached differing conclusions about whether a lawyer assisting a pro se litigant must disclose, or ensure the disclosure of, the fact or extent of the assistance, either to the tribunal or to the adverse parties. This opinion approaches the issue from the question of whether the fact of the assistance is material to the matter. In other words, if failure to disclose would constitute fraudulent or otherwise dishonest conduct by the client, a variety of Model Rules would prohibit the lawyer’s involvement. However, the opinion concludes it is not material to the merits of the litigation that a pro se litigant has had professional assistance in preparing pleadings. Because it is generally obvious to the tribunal that the pro se litigant’s pleadings have been ghostwritten by a lawyer, the pleadings will be held to the same standard as a lawyer’s, and there is thus no reasonable concern that the pro se litigant will receive an unfair benefit. Absent an affirmative declaration by the client that can be attributed to the lawyer, that the pleadings were prepared without legal assistance, it is not dishonest for the lawyer to provide undisclosed assistance. For the same reason, a lawyer who does not appear in the case does not circumvent court rules making lawyers responsible for their pleadings. Those rules apply only when the lawyer signs the pleading and makes an affirmative statement to the court concerning the representation.

ABA Formal Op. No. 07-447: Collaborative Law Practice
Lawyers and clients who participate in a collaborative law process commit to negotiating a mutually acceptable settlement without court intervention. The lawyers must agree that if negotiation fails, they will withdraw from representing their clients and will not assist them in subsequent court proceedings. This opinion expressly rejects the notion of one state bar that such an agreement sets up a nonwaivable conflict between the lawyer and client. On the contrary, representing a client in a collaborative negotiation is merely a type of limited-scope representation, which is permitted by Rule 1.2 if the client gives informed consent and if the limitation on the lawyer’s representation is reasonable. A limited representation is appropriate when, as here, the client has limited objectives for the representation. It is also permissible for the lawyer and client to agree to exclude specific courses of action that might otherwise be available to accomplish the client’s objections. As long as the lawyer adequately advises the client about the risks and benefits of the collaborative model, including the limitations on the lawyer’s participation, the representation is permissible. Of course, limiting the scope of the representation to collaborative negotiation does not abrogate the lawyer’s responsibilities of competence, diligence or communication in connection with the duties assumed.

State Bar of California Formal Opinion No. 2007-174: Release of Electronic Information
This opinion provides a nice supplement to OSB Formal Op. No. 2005-125 on the subject of delivering a client’s file at the termination of a representation. Like Oregon RPC 1.16, California Rule of Professional Conduct 3-700(D) requires a lawyer whose employment has terminated to release to the client all client papers and property. "Client papers and property" is defined to include a wide variety of "items reasonably necessary to the client’s representation." The opinion holds that the form in which an item is held is immaterial, so that electronic documents are part of the client’s papers and property. It rejects the notion of a balancing test under which the client’s need for electronic versions would be balanced against the lawyer’s cost of copying or transferring them. Noting that the lawyer’s obligation is to release documents in the form they are held, and not to create them, the opinion notes that lawyers can minimize the expense and inconvenience of producing electronic versions of client papers by utilizing any one of the commonly available electronic filing systems.

Note: The full text of the OSB Formal Ethics Opinions can found on the bar’s website at http://www.osbar.org/ethics/ethicsops.html. ABA members can download ABA Formal Opinions free for one year after they are issued; otherwise they are available to anyone for purchase at http://www.abanet.org/cpr/membership.html. The California opinion can be downloaded at http://calbar.ca.gov/calbar/pdfs/ethics/ 2007-174.pdf.

ABOUT THE AUTHOR
Sylvia Stevens is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at sstevens@osbar.org.

© 2007 Sylvia Stevens


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