| Oregon State Bar Bulletin — DECEMBER 2007 |
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A Roundup of Recent Formal Ethics Opinions
From the OSB, the ABA and More
By Sylvia Stevens
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In recent months, the OSB Board of Governors has issued three OSB formal ethics opinions about which members should be aware. The ABA Standing Committee on Ethics and Professional Responsibility has also issued several opinions of interest. Although the ABA opinions interpret the ABA Model Rules of Professional Conduct, they are of value to Oregon practitioners because the Oregon RPCs are modeled closely after the ABA model rules; the official comment to the ABA rules and the ABA opinions are often cited in OSB formal ethics opinions. Following is a brief synopsis of those opinions, along with one from the California State Bar.
OSB Formal Ethics Op. 2007-177: Issue
Conflicts
The question of "issue" or "positional" conflict
arises when a lawyer represents two clients who have
inconsistent positions on a legal issue. Former DR
5-105(A)(3) addressed issue conflicts expressly, making
it clear that no conflict existed if the conflicting
legal positions were asserted in factually unrelated
cases. On the other hand, the simultaneous representation
was prohibited when the lawyer actually knew that an
outcome favorable to one client would adversely affect
the client in the other case, unless the clients waived
the conflict. The Oregon RPCs (like their ABA counterpart)
don’t treat issue conflicts as a special type
of conflict; rather, they are encompassed in the general
prohibition of RPC 1.7(a)(1) against representing one
client if the representation will be directly adverse
to another of the lawyer’s clients. In contrast
with the approach under former DR 5-105(A)(3),
the new opinion concludes that a real issue conflict
(where the lawyer knows of the assertion of conflicting
positions and that an outcome favorable to one would
adversely affect the other) cannot be waived by the
affected clients.
OSB Formal Ethics Op. 2007-178: Excessive
Caseloads
In September 2006, the House of Delegates
passed a resolution requiring the Board of Governors
to issue a formal opinion consistent with ABA Formal
Opinion 06-441 on the ethical obligations of public
defenders faced with excessive caseloads. The opinion
begins with a reminder that all lawyers are required
to provide competent and diligent representation to
their clients, and a caseload is excessive if it will
prevent the lawyer from meeting those obligations to
each client. The opinion then goes on to explore the
way in which the lawyer’s work environment might
affect the lawyer’s ability to control the caseload
and suggests options that might apply depending on
whether the lawyer works in a public defender firm,
is a member of a consortium, or practices solo. The
obligations of supervisors and others who assign work
are also discussed. The opinion concludes that lawyers
representing indigent clients must refuse to accept
a workload that prevents them from meeting their ethical
obligation to each client; that lawyers who work in
public defense organizations should seek the assistance
of supervisors and managers in achieving manageable
workloads; and that when those supervisors and managers
have knowledge of excessive workloads among firm lawyers,
they must make reasonable efforts to remedy the problem.
OSB Formal Ethics Op. No. 2007-179: Trial
Publicity
Using civil and criminal case hypotheticals "ripped
from the headlines," this opinion addresses the
extent to which lawyers can make public comment about
a pending case. The BOG acknowledged that the hypotheticals
utilize extreme examples at the extreme edges of permissible
conduct, but concluded that is more helpful than analyzing
situations that are more common but less difficult
analytically. The opinion begins with a discussion
of the balance that Oregon RPC 3.6 strikes between
the First Amendment rights of lawyers (and their clients)
and the interest of the state in fair trials. Accordingly,
RPC 3.6(a) prohibits only extrajudicial statements
that the lawyer knows or reasonably should know will
have a substantial likelihood of materially prejudicing
an imminent adjudicative proceeding in which the lawyer
is involved, unless the statement is expressly permitted
in RPC 3.6(b). The rule does not apply to lawyer-pundits
who are not involved in the proceeding, nor to administrative
decisions or even to judicial proceedings when the
fact-finding will be done by a judge. The opinion discusses
the meaning of "knows or reasonably should know," "substantial
likelihood," "material prejudice" and "imminent" in
the context of the specific facts of the hypothetical
cases, and emphasizes that application of RPC 3.6 is
very fact-specific. A statement that is impermissible
in one situation may be permissible in another. No
clear timeline can be drawn, but the opinion suggests
that statements made well in advance of a trial will
generally present less of a substantial likelihood
of material prejudice than statements made on the eve
of trial.
ABA Formal Op. 06-443: Contact with Inside
Counsel of Represented Organization
This opinion addresses
the propriety under Model Rule 4.2 of communicating
with inside counsel for an organization that is represented
by outside counsel in the matter. It explains that
the purpose of the rule is to protect a represented
person against possible overreaching by adverse lawyers,
to prevent a skilled advocate from taking advantage
of a nonlawyer. This purpose is achieved in the organizational
context by prohibiting communications with certain
constituents of the organization who consult with counsel
or have authority to obligate the organization in the
matter. The opinion concludes that those protections
are unnecessary when the constituent of an organization
is a lawyer-employee who is acting as a lawyer for
the organization and who is not likely, in a lawyer-to-lawyer
communication, to make damaging disclosures. However,
if the inside lawyer is part of the constituent group
with whom communication is prohibited, such as when
the lawyer made decisions giving rise to the issues
in dispute, the prohibition of Model Rule 4.2 will
apply. Of course, inside counsel may avoid any contact
with adverse counsel by referring the opposing lawyer
to outside counsel.
ABA Formal Op. 06-444: Restrictive Covenants
in Retirement Agreements
Model Rule 5.6(a) broadly prohibits
agreements that restrict the right of lawyers to practice
law after they terminate a relationship with a law
firm or employer. A limited exception allows restrictive
covenants that are in exchange for payment of retirement
benefits. This opinion clarifies that a retirement
benefit within the meaning of Model Rule 5.6(a) is
one available only to lawyers who are in fact retiring
and thereby winding down or terminating their legal
careers, although an agreement would not run afoul
of Model Rule 5.6(a) if it allowed the retiring lawyer
to engage in public or other noncompetitive employment,
such as service as a judge, an elected or appointed
government official or in-house counsel for a charitable
organization. True retirement benefits are normally
payable upon satisfaction of minimum age and years-of-service
requirements. Other indicia of legitimate retirement
benefits are benefit calculation formulas, benefits
that increase with years of service to the firm, benefits
payable over the lifetime of a retired lawyer, and
benefits that are interrelated with payments from other
retirement income sources such as pensions or Social
Security. The opinion cautions that the exception in
Model Rule 5.6 for retirement benefits must be construed
strictly and narrowly, with agreements affecting benefits
available only to lawyers who are actually retiring
and not resulting in a forfeiture of income already
earned. "Beyond that, however, law firms and employers
have significant latitude in shaping the nature and
scope of the restriction on practice and the penalties
for noncompliance." ABA Formal Op. 06-444 at 6.
ABA Formal Op. 07-445: Contact with Putative
Members Before Class Certification
The propriety of
contacting putative members in a yet-to-be certified
class action suit depends on whether the putative class
members are deemed to be represented by the lawyer
seeking to certify the class. The client-lawyer relationship
is established when a client manifests intent that
a lawyer provide services, or when there is a substitute
for that assent given by a court or other person authorized
to act for the client. Accordingly, a client-lawyer
relationship with a potential member of a class does
not begin until the class has been certified and the
time for opting out has expired. Prior to that time,
defendant’s
counsel is not barred by Model Rule 4.2 from communicating
with putative class members, and plaintiff’s
counsel is permitted to communicate with them subject
to the limits on solicitation in Rule 7.3. Both plaintiffs’ and
defense counsel must comply with Model Rule 4.3 regarding
communication with unrepresented parties.
ABA Formal Op. 07-446: Undisclosed Assistance
to Pro Se Litigants
State and local ethics opinions
have reached differing conclusions about whether a
lawyer assisting a pro se litigant must disclose, or
ensure the disclosure of, the fact or extent of the
assistance, either to the tribunal or to the adverse
parties. This opinion approaches the issue from the
question of whether the fact of the assistance is material
to the matter. In other words, if failure to disclose
would constitute fraudulent or otherwise dishonest
conduct by the client, a variety of Model Rules would
prohibit the lawyer’s
involvement. However, the opinion concludes it is not
material to the merits of the litigation that a pro
se litigant has had professional assistance in preparing
pleadings. Because it is generally obvious to the tribunal
that the pro se litigant’s pleadings have been
ghostwritten by a lawyer, the pleadings will be held
to the same standard as a lawyer’s, and there
is thus no reasonable concern that the pro se litigant
will receive an unfair benefit. Absent an affirmative
declaration by the client that can be attributed to
the lawyer, that the pleadings were prepared without
legal assistance, it is not dishonest for the lawyer
to provide undisclosed assistance. For the same reason,
a lawyer who does not appear in the case does not circumvent
court rules making lawyers responsible for their pleadings.
Those rules apply only when the lawyer signs the pleading
and makes an affirmative statement to the court concerning
the representation.
ABA Formal Op. No. 07-447: Collaborative
Law Practice
Lawyers and clients who participate in
a collaborative law process commit to negotiating a
mutually acceptable settlement without court intervention.
The lawyers must agree that if negotiation fails, they
will withdraw from representing their clients and will
not assist them in subsequent court proceedings. This
opinion expressly rejects the notion of one state bar
that such an agreement sets up a nonwaivable conflict
between the lawyer and client. On the contrary, representing
a client in a collaborative negotiation is merely a
type of limited-scope representation, which is permitted
by Rule 1.2 if the client gives informed consent and
if the limitation on the lawyer’s representation
is reasonable. A limited representation is appropriate
when, as here, the client has limited objectives for
the representation. It is also permissible for the
lawyer and client to agree to exclude specific courses
of action that might otherwise be available to accomplish
the client’s objections. As long as the lawyer
adequately advises the client about the risks and benefits
of the collaborative model, including the limitations
on the lawyer’s participation, the representation
is permissible. Of course, limiting the scope of the
representation to collaborative negotiation does not
abrogate the lawyer’s responsibilities of competence,
diligence or communication in connection with the duties
assumed.
State Bar of California Formal Opinion
No. 2007-174: Release of Electronic Information
This
opinion provides a nice supplement to OSB Formal Op.
No. 2005-125 on the subject of delivering a client’s file at the termination of a representation.
Like Oregon RPC 1.16, California Rule of Professional
Conduct 3-700(D) requires a lawyer whose employment
has terminated to release to the client all client
papers and property. "Client papers and property" is
defined to include a wide variety of "items reasonably
necessary to the client’s representation." The
opinion holds that the form in which an item is held
is immaterial, so that electronic documents are part
of the client’s papers and property. It rejects
the notion of a balancing test under which the client’s
need for electronic versions would be balanced against
the lawyer’s cost of copying or transferring
them. Noting that the lawyer’s obligation is
to release documents in the form they are held, and
not to create them, the opinion notes that lawyers
can minimize the expense and inconvenience of producing
electronic versions of client papers by utilizing any
one of the commonly available electronic filing systems.
Note: The full text of the OSB Formal Ethics Opinions can found on the bar’s website at http://www.osbar.org/ethics/ethicsops.html. ABA members can download ABA Formal Opinions free for one year after they are issued; otherwise they are available to anyone for purchase at http://www.abanet.org/cpr/membership.html. The California opinion can be downloaded at http://calbar.ca.gov/calbar/pdfs/ethics/ 2007-174.pdf.
ABOUT THE AUTHOR
Sylvia Stevens is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at sstevens@osbar.org.
© 2007 Sylvia Stevens