Oregon State Bar Bulletin — NOVEMBER 2003

Bar Counsel
THINGS LOOK DIFFERENT HERE
House of Delegates approves new disciplinary rules
By Sylvia E. Stevens

On Sept. 20, 2003, the OSB House of Delegates approved a resolution recommending adoption of new Oregon Rules of Professional Conduct (ORPC) to replace the existing Oregon Code of Professional Responsibility.1

The proposed ORPC is patterned after the ABA Model Rules but retains many provisions of the Oregon Code (including many that had been taken from the Model Rules). In developing the proposal, the goal of the Rules Committee2 was to retain the substance of existing rules insofar as possible while conforming them to the Model Rules format. In the few instances where the proposed ORPC included a new obligation, it was because the Rules Committee favored the Model Rule approach or believed that the desire for uniformity outweighed retaining existing Code language. As a result, although the proposed ORPC has a different look, the new rules do not deviate greatly in substance from the DRs.

After approximately two hours of debate and discussion, leading to several amendments, the House of Delegates vote for approval was nearly unanimous, which suggests that bar members embrace this change. In the words of one member (a Region 5 delegate), with the adoption of the new rules, 'Oregon lawyers will better understand and more easily research their ethical obligation to their clients. But even more importantly, [having the new rules] will lead to Oregon clients receiving even better service from their lawyers in the future.'

The House of Delegates made 10 amendments to the proposed ORPC. Most are relatively minor and do not appear to make any meaningful change in the conduct we have traditionally expected of Oregon lawyers. Interestingly, however, several of the changes both rejected the substance of what had been the rule in Oregon and deviate from the Model Rules language that had been proposed.

A brief discussion of the each of the House of Delegates amendments follows; the text of the proposed ORPC showing the changes approved by the House of Delegates can be found here.

Scope [14]: In a purely housekeeping amendment, the House of Delegates deleted two sentences in this paragraph that referred to the official Comment to the Model Rules; the Comment was not part of the proposal before the House of Delegates.

Rule 1.2(b): This is a new rule to Oregon without a counterpart in the Code. It gives express permission for a lawyer to limit the scope of a representation if the limitation is reasonable under the circumstances. It is intended to address the situation in which the client has limited objectives or wishes to limit the means used to accomplish the client’s objectives. The House of Delegates deleted the requirement that the client’s consent to a limited scope representation be 'informed.' Under Rule 1.0(h), 'informed consent' is the result of 'adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.' The proponent of the amendment argued that the requirement for informed consent was unnecessary in this context.

The result of this change may be trap for the unwary. Commentators on the subject have suggested that one of the biggest risks for lawyers in limited scope representations is the potential malpractice liability if the client and lawyer have different understandings about the scope of the lawyer’s responsibility. Accordingly, while there may be no need for an ethical requirement of 'informed' consent, a prudent lawyer would take care to ensure that the client understands the risks and alternatives. Note, too, that Rule 1.4(b) requires a lawyer to 'explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.' If the scope of the lawyer’s responsibilities is a decision regarding the representation, then Rule 1.4 requires the very same explanation that supports 'informed consent.'

Rule 1.5(d): This rule replaces DR 2-107 and governs the sharing of fees between lawyers who are not in the same firm. The Rules Committee recommended the Model Rule approach that the client’s consent to the fee sharing arrangement include consent to the share each lawyer would receive, and that the consent be confirmed in writing. The House of Delegates amended the rule to delete the requirement for written confirmation of the client’s consent on the ground that it was needlessly burdensome. It also deleted the requirement that the client be informed of and agree to the share each lawyer would receive, on the premise that the client should not have the right to control the division of the fee between lawyers. As amended, the rule requires only the client’s consent to the fee sharing arrangement and that the total fee not be excessive. This is essentially what is required by DR 2-107.

Rule 1.6(a): DR 4-101(C) allows a lawyer to reveal confidential client information 'with the consent of the client…but only after full disclosure…' Proposed Rule 1.6(a) carried over that same obligation, but substituted the requirement of 'informed consent' for 'consent…after full disclosure.' A delegate suggested that an explanation of risks and alternatives was unnecessary when the client has requested the release of information. The House of Delegates agreed and deleted the requirement that the client’s consent be 'informed.'

Here, too, the change may lull lawyers into a false sense of security. The discussion in favor of amendment did not address situations where the request for client information comes from someone other than the client and where the disclosure might pose significant risk to the client. Rule 1.4 (see above) requires that the client be provided sufficient information to make informed decisions about the representation. Moreover, a lawyer who doesn’t explain the risks to the client may have other liability if the client is disadvantaged by the uninformed consent to disclosure.

Rule 1.8(f): Like its counterpart, DR 5-108(A), this rule allows a lawyer to accept compensation from someone other than the client if the client consents. The House of Delegates added the words 'or the attorney fees are determined by a tribunal.' The proponent argued that the court’s award affords the client as great or greater protection than informed consent. This amendment is curious, because court-awarded fees are not payment to the lawyer by someone other than the client; they are intended to defray the client’s cost of litigation.

Rule 1.8(h)(4): This was another housekeeping amendment necessitated by the implementation of the bar’s Client Assistance Office, which conducts the initial screening and evaluation of all complaints about lawyer conduct. The rule prohibits a lawyer from entering into an agreement limiting the right of a client to file or pursue a complaint with 'the bar’s disciplinary authority.' To avoid the possibility that someone could violate the spirit of the rule by having the client agree not to file a complaint with the Client Assistance Office, the House of Delegates replaced the words 'the bar’s disciplinary authority' with 'the Oregon State Bar.'

Rule 3.3(a)(4): This subsection retains the requirement of DR 7-102(A)(3) that lawyers reveal 'that which the lawyer is required by law to reveal.' Because there is no counterpart in the Model Rules, it was added to Rule 3.3, which is entitled Candor Toward the Tribunal. The House of Delegates amended the proposal to add the words 'to a tribunal' to add clarity and guard against the rule being taken out of context.

Rule 5.3: This rule governs the responsibilities of lawyers for nonlawyers who assist them in the rendition of legal services. It has been part of the Model Rules since 1983 but has no real counterpart in the Oregon Code. As proposed, it applied to nonlawyers 'employed or retained by or associated with' a lawyer. The attorney general expressed concern that the rule swept too broadly and could make a lawyer responsible for conduct of nonlawyers over whom the lawyer has no supervisory control even if the lawyer did not approve or encourage the conduct and it was otherwise lawful. The House of Delegates amended subsection (a) to make the rule applicable to nonlawyers 'employed, retained, supervised or directed by' a lawyer. Subsection (c) of the rule holds a lawyer responsible for the conduct of such persons if the conduct would be violation for a lawyer and the lawyer ordered or ratified the conduct or if failed to take reasonable remedial action that could have avoided or mitigated the consequences.

Rule 5.5: This is a new rule in Oregon, setting out guidelines for temporary practice in Oregon by out-of-state lawyers. The House of Delegates approved an amendment offered by the BOG to expand the scope of the rule to allow temporary practice by lawyers licensed in foreign (non-U.S.) jurisdictions.

Rule 8.4(a)(3): Rule 8.4 is essentially identical to DR 1-102. Subsection (a)(3) was intended to retain the existing requirement that lawyers not engage in conduct 'involving dishonesty, fraud, deceit or misrepresentation.' The House of Delegates approved adding the words 'in relation to the lawyer’s practice or private business affairs' at the suggestion of a delegate that the rule needed a sharper focus to ensure that lawyers would not be subject to discipline for 'fishing and golf stories, bluffing at poker and much of what passes daily as polite conversation.' Presumably, this change was not intended to preclude the bar from disciplining lawyers who submit false financial statements, or make false statements in the voters’ pamphlet and on drivers license applications.3

The House of Delegates voted down a handful of amendments. One would have adopted the Model Rule requirement that fee sharing between lawyers be proportional to the services performed by each lawyer or based on joint responsibility of the lawyers. Another would have deleted two expressions of the special responsibilities of prosecutors (to take reasonable care that accuseds are informed of their rights and not attempting to obtain waivers of important rights from unrepresented accuseds). The House of Delegates also declined to delete language that makes Rule 4.3 (communication with unrepresented persons) applicable when the lawyer is acting in the lawyer’s own interests, as is Rule 4.2 (communication with represented persons). Finally, the House of Delegates rejected a motion to delete all of Rule 5.3 (responsibilities regarding nonlawyer assistants).

If the Oregon Supreme Court adopts the House of Delegates’s recommendation, it is certainly to be expected that we will go through some 'growing pains' as we become familiar with the new ORPC However, we can take comfort in the knowledge that we have not set sail on uncharted seas, but can, where a particular rule is truly new to Oregon, look for guidance in the experiences of the many jurisdictions that have operated under the Model Rules successfully for some 20 years.

Things look different here, and they look better.

© 2003 Sylvia E. Stevens

Endnotes

1. At the time this was written, the proposal was pending before the Oregon Supreme Court pursuant to ORS 9.490(1), which provides in part : 'The board of governors, with the approval of the house of delegates given at any regular or special meeting, shall formulate rules of professional conduct, and when such rules are adopted by the Supreme Court, shall have the power to enforce the same.'

2. Officially, the Special Legal Ethics Committee on Disciplinary Rules appointed by the BOG in August 2001.

3. See, e.g., In re Jensen, 9 DB Rptr 215 (1995), In re Flannery, 334 Or 224 (2002), and In re Kumley, __ Or __ (2003), respectively.


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