Continuing representation after a client
has filed a greivance with the bar
By Scott Morrill
The creation of the bar’s Client Assistance Office (CAO) has added another wrinkle to lawyers’ compliance with DR 5-101(A). DR 5-101(A) prohibits a lawyer from accepting or continuing employment if the exercise of the lawyer’s professional judgment on behalf of the lawyer’s client will be or reasonably may be affected by the lawyer’s own financial, business, property or personal interests except with client consent after full disclosure. While this rule encompasses many different lawyer self-interest possibilities, this article will focus on a lawyer’s ethical obligations when confronted by a malpractice claim, ethics complaint or CAO inquiry. As you will recall, the CAO is the bar’s new central intake point for all complaints about the conduct of Oregon lawyers.
The question presented in this article is what must a lawyer do under DR 5-101(A) to continue representing a client who has filed a complaint with the bar? Whether your professional judgment will be or reasonably may be affected by your personal interests is a question that depends on the facts of your situation. That is, do you believe that your judgment will be affected by the filing of a complaint? Beyond that, would it be reasonable to expect that your judgment would be so affected? If you are not affected by having an ethics complaint looming over you, DR 5-101(A) may not apply. For example, a new lawyer with no history of complaints may be more distracted or affected by a complaint than an experienced lawyer who has responded to several groundless complaints and who determines that the present complaint is also groundless. It is not unusual for criminal defense lawyers or domestic relations lawyers to have numerous complaints made against them. In fact, these two categories comprise nearly 45 percent of the complaints made to the CAO since its inception in August 2003. However, as the likelihood of conflict and the seriousness of issues increase, so does the likelihood that your judgment will be affected.
A checklist is not available to assist lawyers in determining whether the filing of an ethics complaint triggers the need to comply with DR 5-101(A). As suggested above, some lawyers may not be distracted by a complaint because they have dealt with them before and can tell when one is justified or not. Other lawyers may take it personally or be so upset and uncertain about the situation that their judgment will clearly suffer. In the first instance the lawyer may continue to represent the client, but should probably get consent after full disclosure to be on the safe side. In the latter instance, the lawyer should withdraw (in compliance with DR 2-110).
While there are no cases in which a lawyer was sanctioned for violation of DR 5-101(A) in the situation where a client had filed a bar complaint and the lawyer failed to withdraw or obtain the client’s consent after full disclosure to continue the representation, some examples of comparable situations where DR 5-101(A) violations were found to have occurred may be helpful to determine whether your judgment will be or reasonably may be affected in a client bar complaint situation. In In re Lafky, 13 DB Rptr 114 (1999) an attorney continued to represent a client without full disclosure and consent after he may have committed malpractice. Similarly, in In re Lawrence, 332 Or 502, 31 P3d 1078 (2001) the court disciplined an attorney who continued to represent his client after the lawyer committed legal malpractice. The court also found that the attorney’s attempt to disclose his conflict and get his client’s consent was insufficient because it was not done in writing. And in In re Toth-Fejel, 14 DB Rptr 179 (2000) the attorney agreed that he violated DR 5-101(A) by continuing to represent his client after the opposing party filed for sanctions against both the attorney and the client. The attorney represented the client at the sanctions hearing even though he had a personal interest in the result because he could have been held personally liable. The attorney failed to get consent from the client after full disclosure.
In the case of a malpractice claim against you by your client, there is a high degree of probability that your judgment will be affected. Bar counsel generally take the position that such situations trigger the full disclosure obligations under DR 5-101(A). In re Lawrence, 332 Or 502, 31 P3d 1078 (2001); OSB Legal Ethics Op No 1991-61. Caution suggests that if you believe that you may have committed malpractice, and you want to continue to represent your client, then you should get consent after full disclosure (The Ethical Oregon Lawyer Sect. 8.5). DR 10-101(B) sets out the requirements for consent after full disclosure. Full disclosure means an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient of the matter disclosed, a recommendation that the recipient seek independent legal advice regarding whether to consent, and that this all be done in writing. The exercise of caution suggests that you should not continue to represent your client in the face of a potential or actual malpractice claim. You should also consider contacting the Professional Liability Fund for advice on the matter.
Some clients file bar complaints simply as a tool to get their lawyers to perform. We see this theme in many of the inmate complaints that are filed, but we have also seen it in the civil arena. Often the issue is a communication problem between the lawyer and the client, which a letter or telephone call from the lawyer helps resolve. Some clients file complaints out of frustration regarding the pace of the lawyer’s work or the results obtained. In some of the pace-of-work situations, the lawyer determines that his or her judgment is affected and the lawyer withdraws. Obviously, post-representation bar complaints do not involve DR 5-101(A), as the lawyer’s judgment cannot be affected by the complaint; the representation has been concluded.
The wrinkle added by the creation of the CAO is that matters submitted to the office are not technically ethics complaints until CAO refers them to disciplinary counsel. CAO may conduct some investigation or dismiss a complaint because it does not implicate an ethics rule or because there is no credible evidence to support the complaint. However, the lawyers will be notified that their clients are not happy with them. In this situation, the analysis is really no different than before the creation of the CAO. Does this particular complaint affect or can the complaint reasonably be expected to affect the lawyer’s professional judgment on behalf of the client? If the lawyer believes that his judgment will be or reasonably may be affected, the lawyer must obtain consent from the client to continue representation after full disclosure. If the lawyer determines that the complaint is groundless and that his judgment is not affected or could not, in retrospect, be deemed to reasonably be expected to be affected by the particular complaint, the lawyer may continue to represent the client without compliance with DR 5-101(A). Again, caution would suggest making full disclosure to the client and obtaining the client’s consent to continue the representation in light of the client’s contact with the bar about the attorney’s conduct.
The proposed Oregon Rules of Professional Conduct relating to lawyer self-interest conflicts currently pending before the Oregon Supreme Court are not much different from DR 5-101(A). They are based on the ABA Model Rules and state:
RULE 1.7 CONFLICT OF INTEREST: CURRENT
(A) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a current conflict of interest. A current conflict of interest exists if:
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer
Paragraph (b) allows a lawyer to continue representing a client in such circumstances if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation and the client gives informed consent confirmed in writing. The ABA model rule here is based on the concepts of loyalty to the client and independent judgment. Annotated Model Rules of Professional Conduct (ABA 5th ed. 2003).
One of your principal duties is to provide independent legal advice to your client. Whether your client has a malpractice claim or has complained to the bar about your conduct, you must decide if you can continue to provide independent legal advice, or if your ability to exercise that independent professional judgment is or may reasonably be expected to be affected by the claim or complaint. If your judgment is affected or reasonably may be expected to be affected, and you wish to continue representing your client, you must obtain the client’s consent after full disclosure in order to comply with DR 5-101(A). If you are unable to exercise independent professional judgment on behalf of your client, you should withdraw in compliance with DR 2-110.
© 2004 Scott Morrill
ABOUT THE AUTHOR
Scott Morrill is an assistant general counsel with the OSB Client Assistance Office. Reach him at (503) 620-0222, ext. 344, or toll-free in Oregon at (800) 452-8260, etx. 344; or by e-mail at firstname.lastname@example.org.