Skip to Content
  • Home
  • About the Bar
  • Mission
  • Forms
  • Sitemap
    • Member Directory
      Last Name:
      First Name:
      Bar Number:
      City:


    • Login
OSB Logo

Oregon State Bar Bulletin — JUNE 2003

Bar Counsel
NEW DR 1-105
Written advisory ethics opinions
By George A. Riemer

A new disciplinary rule regarding written advisory ethics opinions goes into effect on Tuesday, July 1, 2003. This article will explain the genesis of this new rule and how the written advisory ethics opinion process will work.

The Oregon State Bar has issued written advisory ethics opinions for decades. The most widely circulated of these are the formal opinions published in OSB Formal Ethics Opinions. Under Board of Governors Policy 9.400, the Legal Ethics Committee drafts responses to members’ inquiries and can propose the adoption of formal ethics opinions to the Board of Governors. If approved by the board, they are published in OSB Formal Ethics Opinions. The formal opinions are also available on the bar’s website here.

In addition, the bar’s general counsel’s office has for many years provided informal assistance to OSB members regarding ethics questions. Bar members may discuss prospective ethics issues with the general counsel and assistant general counsel, who endeavor to direct bar members to helpful information and may offer their reactions to ethics issues over the phone and by letter response.

Several forces recently came together to cause the bar to reevaluate its ethics opinion and assistance services. First, fewer formal ethics opinions are being requested, primarily due to the fact that inquirers have needed quicker responses than the opinion-drafting process has allowed. A developing ethics issue cannot wait several months to be addressed if the bar’s ethics assistance is to be of any immediate value to inquirers. Thus, most ethics questions are addressed by the general counsel’s office on a quick-reaction as opposed to a more scholarly written-opinion basis. Second, the Code of Judicial Conduct was amended a number of years ago to allow judges to obtain telephonic and written advisory opinions from the Judicial Conduct Committee of the Judicial Conference. Under JR 6-102, judges have been able to use such opinions to show their good faith efforts to comply with the Code of Judicial Conduct and to mitigate any potential sanction for violations of the judicial ethics rules. Various discussions over the course of time have lead to the question, why doesn’t the bar have this type of rule for the benefit of the membership? Finally, the Oregon Supreme Court’s decision in In re Brandt and Griffin, 331 Or. 113, 10 P.3d 906 (2000), generated criticism that lawyers should be able to rely on ethics assistance provided by bar’s general counsel’s office as mitigation of, if not a defense to, disciplinary charges brought by the bar.

When the OSB House of Delegates approved the appointment of a study group to thoroughly review the OSB disciplinary process in 2001, one of the issues assigned to the task force was whether the bar should adopt a rule similar to JR 6 of the Code of Judicial Conduct (Advisory Opinions on Judicial Conduct; Consideration Given in Judicial Conduct Proceedings) for lawyers. Following discussion and debate in the task force, proposed DR 1-105 was drafted tracking the language of JR 6-102 in most respects. The Board of Governors and House of Delegates subsequently approved this proposed new disciplinary rule in 2002. The Oregon Supreme Court approved the new rule April 1, 2003, effective July 1, 2003. (See the full text of the rule set here.)

Starting July 1, 2003, bar members can submit written requests for advisory ethics opinions to the general counsel’s office, and the bar’s written response may be used in disciplinary proceedings in the manner set forth in new DR 1-105. Bar members should note the following in conjunction with this new process:

1. Opinion requests must be in writing. 'In writing' includes faxes and e-mails.

2. The question must relate to the requestor’s own prospective conduct, not the conduct of someone else.

3. The information submitted must be adequate for the general counsel’s office to understand the situation and must be accurate.

4. The general counsel’s office may request additional information.

5. The general counsel’s office may decline to respond and instead refer a question to the Legal Ethics Committee for review.

6. Once the general counsel’s office has the information it believes it needs to answer the question, it has a minimum of three business days to respond.

7. BOG Policy 9.400(E) provides that 'Responses and opinions provided by General Counsel’s Office, the Legal Ethics Committee and the Board of Governors shall be limited to and deemed to address only the facts as submitted by the inquirer.'

8. Bar members can still telephone the general counsel’s office for reactions to ethics questions, but those reactions do not qualify for the consideration given written advisory opinions under DR 1-105 unless they are confirmed in writing as set forth in the rule.

9. Ethics questions and responses thereto are not confidential and communications with the bar’s general counsel’s office are not privileged. No attorney-client relationship is intended or created by such communications with the bar. Inquirers should be careful to use hypotheticals or otherwise ensure that the request does not disclose information protected by DR 4-101.

The enactment of DR 1-105 is not intended to diminish the responsibility bar members have for their own professional conduct, including the responsibility to make final decisions regarding their actions regardless of advice or assistance they may receive from the bar or anyone else. DR 1-103(C) continues to provide that 'A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.' As noted by the court in In re Brandt and Griffin, 331 Or. 113, 10 P.3d 906 (2000), 'Just as favorable advice by the bar’s general counsel does not provide a defense to disciplinary violations, In re Ainsworth, 289 Or. 479, 490, 614 P.2d 1127 (1980), such advice does not estop the bar from charging violations with respect to conduct undertaken after obtaining the advice of the bar’s general counsel.' 10 P.3d at 918-919.
Nevertheless, DR 1-105 will provide lawyers with evidence of their good faith efforts to conform their conduct to the disciplinary rules and should address concerns about what was asked and what advice was given. An opinion obtained under the rule may be used in any subsequent disciplinary proceeding that may arise as a result of the specific conduct addressed in the opinion. The Disciplinary Board and Oregon Supreme Court may consider the lawyer’s good faith effort to comply with the written opinion as a showing of the lawyer’s good faith effort to comply with the disciplinary rules and as a basis for mitigation of any sanction that may be imposed if the lawyer is found to be in violation of the rules.

Of the many thousands of ethics reactions and opinions the bar has provided to bar members over the course of time, few have ended up as disputes about what was asked and what was answered in subsequent disciplinary proceedings. New DR 1-105 puts the bar ethics opinion process on par with that available to Oregon judges and also addresses the issue of factual disputes about what was asked and answered when the bar’s assistance has been sought regarding ethics issues. The benefits of the new rule only apply to written advisory opinions issued by the bar.

ABOUT THE AUTHOR
George A. Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at (503) 620-0222, ext. 405, or toll-free in Oregon at (800) 452-8260, ext. 405, or by e-mail at griemer@osbar.org.

© 2003 George A. Riemer


— return to top
— return to Table of Contents

  • For The Public

      Public Legal Information

    • Public Information Home
    • Legal Information Topics
    • Oregon Juror Guide
    • Submit Ethics Complaint

    • Getting Legal Help

    • Finding The Right Lawyer
    • Hiring A Lawyer
    • Lawyers Fees

    • Client Services

    • Client Assistance Office
    • Client Security Fund
    • Fee Dispute Resolution
    • Public Records Request
    • Locating Attorney Files

    • Unlawful Practice of Law

    • UPL Information
    • UPL FAQ

    • Volunteer Opportunities

    • Public Member Application
  • For Members

    OSB Login

    • Log In To OSB Site
    • Member Account Setup
    • Non-Member Account Setup
    • Reset Password

    OSB Resources

    • Attorney's Marketplace
    • Career Center
    • Events
    • Forms Library
    • Online Resources
    • OSB Group Listings
    • Performance Standards
    • Rules Regulations and Policies
    • Surveys and Research Reports
    • Unclaimed Client Funds
    • Voting Regions and By-City
      County Information

    Benefits for
    Oregon Lawyers

    • Log in to Fastcase™
    • – Overview
    • – Scheduled Webinars
    • – Inactive Member Subscriptions
    • No Cost Trust & Billing Software

    Legal Ethics

    • Legal Ethics Home
    • Find an Ethics Opinion
    • Bulletin Bar Counsel Archive

    Company Administrator

    • Company Administrator Home
    • Company Administrator FAQ
    • Authorization Form

    State Lawyers
    Assistance Committee

    • SLAC Info

    Volunteering

    • Volunteer Opportunities

    Court Information

    • Judicial Vacancies
    • Court Info | Calendars | Jury Info
    • Oregon Attorneys
      in Federal Court
    • Tribal Courts of Oregon

    OSB Publications

    • Bar Bulletin Magazine
    • – Bulletin Archive
    • – Legal Writer Archive
    • Capitol Insider
    • Disciplinary Board Reporter

    PLF Programs

    • (OAAP) Oregon Attorney
      Assistance Program
    • Practice Management Attorneys
    • Malpractice Coverage
  • CLE/Legal Publications

    CLE Seminars

    • CLE Seminars Home
    • Online Seminar Registration
    • General Info/FAQ

    My Account

    • My Content
    • My Events
    • Order History

    Legal Publications

    • Legal Publications Home
    • Log in to BarBooks®
    • BarBooks® FAQ
    • Online Bookstore
    • Legal Pubs Blog
  • Bar Programs

    Diversity & Inclusion

    • Diversity & Inclusion Home
    • Diversity Story Wall
    • D&I Programs
    • ACDI Roster
    • D&I Staff Contacts
    • D&I Links

    Legislative/Public Affairs

    • Legislative Home
    • Committee Contacts
    • Legislative Sessions
    • Staff Contacts
    • Useful Links

    Legal Services Program

    • LSP Home

    Oregon Law Foundation

    • OLF Home
    • Partners in Justice

    Fee Dispute Resolution

    • Fee Dispute Resolution Home

    Pro Bono

    • Pro Bono Home
    • Pro Bono Reporting
    • Volunteer Opportunities

    Lawyer Referral and Information Services

    • RIS Login
    • Summary of Referral and Information Services Programs
    • Lawyer Referral Service Info and Registration Forms
    • Modest Means Program Registration Forms
    • Military Assistance Panel Training Info and Registration Form
    • Problem Solvers Registration Form
    • Lawyer To Lawyer Registration Form

    (LRAP) Loan Repayment Assistance Program

    • LRAP Home
    • LRAP FAQ
    • LRAP Policies
  • Member Groups

    Sections

    • Section Info/Websites
    • Joining Sections
    • CLE Registration Services
    • Standard Section Bylaws (PDF)
    • Leadership Resources
    • Treasurers Tools

    Committees

    • Home
    • Leadership Resources
    • Professionalism Commission
    • Volunteer Opportunities

    House of Delegates

    • HOD Home
    • HOD Resources
    • Meetings
    • Rules (PDF)
    • Roster (PDF)
    • Staff Contacts

    Board of Governors

    • BOG Home
    • Meetings & Agendas
    • Members
    • Liaisons
    • Committees
    • Resources
    • Task Forces

    Oregon New Lawyers Division

    • ONLD Home
    • Law Students
    • Student Loan Repayment
    • Committees
    • Upcoming Events

    Task Forces and Special Committees

    • Task Forces Home

    Volunteer Bars

    • List/Contacts
    • Leadership Resources

    Volunteering

    • Volunteer Opportunities
  • Licensing/Compliance

    Admissions

    • Admissions Home
    • Alternative Admittance
    • Applicants for Admission
    • Admissions Forms
    • Past Bar Exam Results

    Supervised Practice Portfolio Examination

    • SPPE Home

    Licensed Paralegal Program

    • LP Home

    Lawyer Discipline

    • Discipline Home
    • Disciplinary Board Reporter
    • Disciplinary Boards
    • Client Assistance Office
    • (SPRB) State Professional Responsibility Board

    Membership Records

    • Address Changes
    • Good Standing Certificate
    • Request Discipline File Review

    MCLE

    • MCLE Home
    • Program Database
    • Forms
    • Rules (PDF)

    IOLTA Reporting

    • IOLTA Home
    • IOLTA FAQ

    Licensing Fees

    • Licensing Fee FAQ
    • Licensing Fee Payment

    Status Changes

    • Status Changes FAQ
    • Inactive Status Form
    • Retired Status Form
    • Active Pro Bono Status Form
    • Reinstatement Forms
    • Resignation Form A
    • Pending Reinstatements

    Unlawful Practice of Law

    • UPL Information
    • UPL FAQ

    Pro Hac Vice/Arbitration

    • Pro Hac Vice
    • Arbitration

    New Lawyer Mentoring Program

    • New Lawyer Mentoring Program Home

    Professional Liability Fund

    • Professional Liability
      Fund Website
For The Public

Public Information Home
Legal Information Topics
Oregon Juror Guide
Finding The Right Lawyer
Hiring A Lawyer
Lawyers Fees
Client Assistance Office
Public Records Request
Unlawful Practice of Law
Fee Dispute Resolution
Client Security Fund
Volunteer Opportunities
for the Public

For Members

BarBooks®
Bulletin Archive
Career Center
Fastcase™
Judicial Vacancies
Legal Ethics Opinions
OSB Group Listings
OSB Login
OSB Rules & Regs
SLAC Info
Surveys and Reports
Volunteer Opportunities

CLE/Legal Pubs

CLE Seminars Home
Legal Publications Home

Bar Programs

Diversity & Inclusion
Fee Arbitration/Mediation
Legal Services Program
Legislative/Public Affairs
Loan Repayment
Assistance Program

Oregon Law Foundation
Pro Bono

Member Groups

Board of Governors
Committees
House of Delegates
Volunteer Bars
Oregon New
Lawyers Division

OSB Sections
Professionalism
Commission

Volunteer Opportunities

About The Bar

About the Bar
ADA Notice
Contact Info
Copyright Notice
Directions to the Bar
Meeting Room Rentals
Mission Statement
OSB Job Opportunities
Privacy Policy
Staff Directory
Terms of Use

Licensing/Compliance

Admissions
Client Assistance Office
Client Security Fund
IOLTA Reporting
Lawyer Discipline
MCLE
Member Fee FAQ
New Lawyer
Mentoring Program

Professional Liability Fund
Status Changes

Oregon State Bar Center

Phone: (503) 620-0222
Toll-free in Oregon: (800) 452-8260
Facsimile: (503) 684-1366

Building Location:
16037 SW Upper Boones Ferry Road
Tigard, OR 97224

Mailing Address:
PO Box 231935
Tigard, OR 97281

Oregon State Bar location Map

Copyright ©1997 Oregon State Bar  ®All rights reserved | ADA Notice | Mission Statement | Privacy Policy | Terms of Use