Too many, too confusing?
By George A. Riemer
The Oregon State Bar House of Delegates will soon be considering
various recommendations from the Board of Governors concerning possible
improvements to the state bar disciplinary process, following the completion
of the report of the Disciplinary System Task Force. That task force,
established by the House of Delegates in 2001, submitted its report
to the board during the week of July 15, 2002. At the time of this writing,
the Board of Governors was in the final stages of its review of the
task force's report. On Aug. 27, the board will approve the preliminary
agenda of the Oct. 5 House of Delegates meeting. Members will receive
that agenda from the state bar shortly thereafter.
One of the recommendations of the Disciplinary System Task Force to the Board of Governors is that the Oregon Code of Professional Responsibility be reviewed to determine if it can be made simpler, less vague and easier to follow.
The Oregon Code of Professional Responsibility contains approximately 46 major disciplinary rules. Many of those rules contain numerous subsections. By rough approximation, Oregon lawyers have to comply with several hundred ethics requirements, not counting those contained in ORS Chapter 9. Questions have been raised: Are there too many ethical requirements? Are the rules too vague? Could the current Code be simplified, clarified, and made easier to follow?
Simplicity has its virtues. It would undoubtedly be nice if we could put all the necessary ethics rules for lawyers on a calendar card suitable for wallet or purse. Unfortunately, the ever-increasing complexity of life is mirrored in the ever-increasing complexity of ethical transgressions. The current Oregon Code of Professional Responsibility is considerably more involved than the ethics code first adopted by the Oregon Supreme Court when the Oregon State Bar was established in 1935. Over the years rules have been added to regulate such conduct as advertising and solicitation, sex with clients, mediation and undercover investigations. And more detailed rules have been adopted to deal with client and personal conflicts of interest. The bar and Oregon Supreme Court have responded to changing notions of unacceptable professional conduct over the course of the years by proposing and adopting many new ethics requirements.
The Oregon State Bar Legal Ethics Committee is currently reviewing the Code in light of the changes the American Bar Association has recently made to its Model Rules of Professional Conduct. The ABA's changes emanated from the work of its Ethics 2000 Commission. Several additional changes to the ABA Model Rules were approved by the ABA House of Delegates on Aug. 12, as a result of the report of the ABA Multijurisdictional Practice Commission. The Board of Governors is also currently working with the boards of the Idaho, Utah and Washington State Bar to form a study group to look at the similarities and differences between the ethics rules of the four states and at each state's multijurisdictional practice restrictions.
On Aug. 2, the Board of Governors endorsed the Disciplinary System Task Force recommendation that the OSB continue to review the Oregon Code of Professional Responsibility for ways to simplify and clarify the disciplinary process. Simplifying and clarifying the Code of Professional Responsibility will be no small task. What rules should be repealed? Would the public interest be adversely affected if we repealed:
1. The duty to report misconduct (DR 1-103(A))?
2. The rules preventing lawyers from paying others to promote or recommend their services (DR 2-103)?
3. The ethical (as opposed to malpractice) requirement that lawyers provide competent representation to their clients (DR 6-101(A))?
4. The rules against communicating with represented persons (DR 7-104)?
5. The rules against certain types of pretrial publicity (DR 7-107)?
All these rules advance important public protection goals, but are they essential to the maintenance of an ethical bar? If these rules shouldn't be deleted, are there any that should?
Clarification of standards is also a worthy goal, but
how does one go about clarifying a rule like DR 6-101(B), which provides
that '[a] lawyer shall not neglect a legal matter entrusted to
the lawyer.'? The ABA's Model Rule of Professional Conduct 1.3
states this obligation somewhat differently: 'A lawyer shall act
with reasonable diligence and promptness in representing a client.'
Is the ABA standard clearer than the Oregon standard, or are both vague
and ambiguous? If they are both unduly vague and ambiguous, should the
concept of neglect or diligence be an ethical standard at all? Interestingly,
the original Oregon State Bar Rules of Professional Conduct adopted
by the Oregon Supreme Court in December 1935 do not contain a rule prohibiting
the neglect of legal matters.
Bar members are encouraged to review the Disciplinary System Task Force's report and to participate in the upcoming meeting of the OSB House of Delegates in Eugene on Oct. 5, when the Board of Governors' recommendations concerning that report will be considered. The complete agenda for that meeting has not been established as of this writing, but many important issues involving the OSB disciplinary process, the legal profession and the Oregon judicial system will be voted on by the delegates in Eugene.
ABOUT THE AUTHOR
George Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at (503) 620-0222, ext. 405, or firstname.lastname@example.org.
© 2002 George A. Riemer