Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2002
| Bar Counsel |
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 griemer@osbar.org.
© 2002 George A. Riemer