|Oregon State Bar Bulletin JANUARY 2007|
When the Oregon Rules of Professional Conduct took effect in January 2005, nearly everyone who participated in their adoption understood that the new rules would be a work in progress, subject to continual refinement to correct deficiencies and inadequacies identified as the rules were implemented and interpreted by the court. That refinement process began almost immediately, with the revision of the IOLTA rules that became effective in November 2005. Effective Dec. 1, 2006, the Oregon Supreme Court has adopted several more amendments. For the most part, the 2006 changes are minor, but at least two will go a long way toward helping practitioners comply with their obligations under the RPCs by clarifying and filling in gaps that result from the fact that our rules do not include any official comment.
Rule 1.9 Duties to Former Clients
Perhaps the most significant change is to RPC 1.9 which, like its ABA Model Rule counterpart, prohibits a representation adverse to a former client if the matters are the same or "substantially related." Former DR 5-105(C) similarly prohibited being adverse to a former client if matters were the same or "significantly related" and explained how matters were significantly related. The drafters and others who have studied the new rule, including the Legal Ethics Committee, do not believe there is a meaningful distinction between the two phrases. However, Oregon RPC 1.9 as originally adopted did not contain a definition of "substantially related."1 New subsection (d) now provides:
For purposes of this rule, matters are "substantially related" if (1) the lawyer’s representation of the current client will injure or damage the former client in connection with the same transaction or legal dispute in which the lawyer previously represented the former client; or (2) there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation of the former client would materially advance the current client’s position in the subsequent matter.
The first part of the new language comes largely from former DR 5-105(C)(1) to retain the prohibition against undercutting the work done for the former client regardless of whether it involves the use of confidential information. The second part of the new definition comes from the comment to ABA Model Rule 1.9 and makes it clear that only confidential factual information gives rise to a conflict, rather than all information learned in the prior representation. Further analysis of the former client conflict standard can be found in OSB Formal Legal Ethics Opinions Nos. 2005-11 and 2005-17.
Rule 1.10 Imputation of Conflicts of Interest
Paragraph (a) of this rule operates to impute the conflicts of one firm member to all other members of the firm. It is identical to ABA Model Rule 1.10(a). Specifically exempted from the general rule of imputation is a conflict that is based on a "personal interest of the prohibited lawyer," provided the personal interest of the prohibited lawyer "does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm."
The "personal interest" prohibition applies clearly to conflicts exiting under Oregon RPC 1.7(a)(2), pursuant to which a lawyer has a conflict when there is a "significant risk" that the lawyer’s representation of a current client will be "materially limited" by a "personal interest of the lawyer." What was not clear under RPC 1.10 as originally adopted, was whether the exemption for a "personal interest conflict" also encompassed the spousal or family conflict expressed in 1.7(a)(3).
Spousal and family conflicts were covered in former DR 5-101(A)(2), and were specifically exempted from the vicarious disqualification provisions of former DR 5-105(G). Former DR 5-101(A)(2) was adopted in 1997 and based on a provision of then-ABA Model Rule 1.8. By the time Oregon adopted the RPCs, the ABA had repealed its spouse-conflict rule, replacing it with comments in MR 1.7, making it clear that spouse and family conflicts were a type of "personal interest" under the rule.
The drafters of the Oregon RPCs retained the specific spousal conflict rule in order to be true to the mandate of not making substantive changes to the rules governing lawyer conduct in Oregon. The unintended consequence, however, is that it was not particularly clear that the spouse and family conflict was a "personal conflict" within the meaning of RPC 1.10. As amended, RPC 1.10(a) now provides for that expressly:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer or on Rule 1.7(a)(3) and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm (emphasis added).
Rule 3.1 Meritorious Claims and Contentions
This rule generally prohibits lawyers from taking action unless it has a non-frivolous basis in law or fact. As originally adopted, the prohibition applied when a lawyer was acting "on behalf of a client." The ABA Model Rule on which RPC 3.1 is based does not contain the "on behalf of a client" language; it was added to Oregon RPC 3.1 in part so that the rule would more closely track former DR 7-102(A). That rule, however, applied by its terms not only when a lawyer was representing a client, but also when "representing the lawyer’s own interests." The "own interests" language was added to former DR 7-102(A) in 1991 after the state supreme court ruled in In re Glass, 308 Or 297, 779 P2d 612 (1989) that the reference in the rule to "representation of a client" did not grant lawyers a license to abuse the legal process for their own personal advantage. (The court had made the same pronouncements in In re Hopp, 291 Or 697, 700-01, 634 P2d 238 (1981), and In re Huffman, 289 Or 515, 614 P2d 586 (1980).) While there is no reason to believe the supreme court would reach a different conclusion under Oregon RPC 3.1 as it did under the pre-1991 version of former DR 7-102(A), the rule as amended provides clear notice of the reach of the rule:
In representing a client or the lawyer’s own interests, a lawyer shall not knowingly bring or defend a proceeding, assert a position therein, delay a trial or take other action on behalf of a client, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law, except that a lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration may, nevertheless so defend the proceeding as to require that every element of the case be established.
Rule 3.5 Impartiality and Decorum of the Tribunal
Unlike its predecessor, former DR 7-110(B), the prohibition on ex parte contact in RPC 3.5(b) is not limited to contact relating to "the merits of the cause." This change created considerable confusion, as it suggested that the rule could be violated by even innocent contact with a judge that was unrelated to the merits of the matter. Case law in other jurisdictions that have followed the Model Rules for years do not interpret the rule so broadly, but the absence of any authority in Oregon made many practitioners uncomfortable. The language of the old rule is not entirely clear. As the Oregon Supreme Court noted in In re Schenck, 320 Or 94, 879 P2d 863 (1994), interpreting former DR 7-110(B), a communication on a purportedly procedural matter may still relate to the merits of the cause. Nevertheless, after exploring various alternatives, it was ultimately concluded that the best approach was to restore the language of the old rule, which the supreme court has now done:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte on the merits of a cause with such a person during the proceeding unless authorized to do so by law or court order;
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Rule 4.4 Respect for the Rights of Third Persons
Paragraph (a) of this rule prohibits conduct that has no purpose other than to embarrass, delay, harass or burden a third person. Like RPC 3.1, RPC 4.4(a) as adopted applied only to conduct that occurs in the course of representing a client. This rule had no direct counterpart in the Oregon Code, although it resembles former DR 7-102(A) which, as discussed above, prohibited action taken merely to harass if it was done "in the lawyer’s representation of a client or in representing the lawyer’s own interests." None of the Model Rule jurisdictions has amended Rule 4.4 to apply when a lawyer represents his or her own interests, but at least two jurisdictions have applied the rule to lawyers who abused the legal process to advance their own personal interests. RPC 4.4(a) as amended more clearly expresses the reach of the prohibition:
In representing a client or the lawyer’s own interests, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, harass or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person.
Rules 7.1 and 8.4
The former Oregon Code of Professional Responsibility contained two prohibitions against stating or implying the ability to exert improper influence on government. Former DR 1-102(A)(5) made it misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official." That rule was made part of the Oregon Code in 1986. At that time, a similar prohibition existed in former DR 2-101(A) relating to advertisements. It prohibited a statement that was "intended or is reasonably likely to convey the impression that the lawyer is in a position to improperly influence any court or other public body or office." In 1992, DR 2-101(A) was amended slightly to prohibit a communication that "states or implies that the lawyer or the lawyer’s firm is in a position to improperly influence any court or other public body or office."
It was not clear to the drafters of the Oregon RPCs whether the duplication of the prohibition in the former Code was inadvertent or purposeful. They questioned the need for having essentially the same rule in two places and recommended retaining it as an advertising prohibition in Oregon RPC 7.1(a) while deleting it from the general misconduct provisions of Oregon RPC 8.4. (The ABA Model Rules have no counterpart to the detailed prohibitions in former DR 2-101(A).) The drafters recommended using the broader language of ABA Model Rule 8.4(e) in Oregon RPC 7.1(a)(5). The BOG, the HOD and the Oregon Supreme Court agreed.
The unforeseen consequence of this drafting choice is that the Oregon RPCs as originally adopted did not prohibit a lawyer from stating or implying the ability to improperly influence government except in the context of advertising. For example, the new rules did not appear to prohibit a lawyer from threatening to use the lawyer’s influence with the district attorney, the mayor and myriad other local officials in a demand for payment of a client’s debt, since the statement is not a communication about the lawyer or the lawyer’s services within the meaning of Oregon RPC 7.1.
To remedy this gap, both RPC 7.1(a)(5) and Oregon RPC 8.4(a) needed to be amended. The language that was in RPC 7.1(a)(5) was moved to RPC 8.4(a)(5), and RPC 7.1(a)(5) was amended to restore the language of former DR 2-101(A)(5):
RULE 7.1 COMMUNICATION CONCERNING A LAWYER’S SERVICES
(a) A lawyer shall not make or cause to be made any communication about the lawyer or the lawyer’s firm, whether in person, in writing, electronically, by telephone or otherwise, if the communication:
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(5) states or implies states or implies that the lawyer or the lawyer’s firm is in a position to improperly influence any court or other public body or office;
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RULE 8.4 REPORTING PROFESSIONAL MISCONDUCT
(a) It is professional misconduct for a lawyer to:
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(5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate these Rules or other law; or
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Minor amendments were also made to Rule 1.6(b)(6) (substituting the language "information relating to the representation of a client" for "confidences and secrets") and to Rule 1.13 (conforming the rule to the ABA Model Rule regarding the duty of a lawyer representing an organization to take action when the lawyer knows the client is violating a legal obligation). The full text of the amended Oregon RPCs can be found at www.osbar.org/ _docs/rulesregs/orpc.pdf.
1. Comment (3) to ABA Model Rule 1.9 reflects the rule’s principal focus on the use of information learned in the prior representation: "Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter."
ABOUT THE AUTHOR
Sylvia Stevens is general counsel of the Oregon State Bar. She can be reached at (503) 620-0222 or (800) 452-8260, ext. 359, or by e-mail at email@example.com.
© 2007 Sylvia Stevens