| Oregon State Bar Bulletin — JANUARY 2010 |
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No matter how hard we may try to please our clients, sometimes complaints are inevitable. Statistics from the Oregon State Bar Client Assistance Office show this to be particularly true in the areas of domestic relations and criminal defense. But even in other practice areas, clients can become so dissatisfied with their representation (or their case) that they complain to the bar, insisting that their lawyers surely must be incompetent or otherwise unethical, usually because their lawyers are pursuing a strategy that they either don’t agree with or simply don’t understand. Oddly, these same clients do not always fire their lawyers. Seemingly odder still, lawyers in this situation sometimes can’t — or don’t want to — withdraw.
Whether and under what conditions a lawyer may continue to represent a client after the client has filed a bar complaint is the topic of OSB Formal Ethics Op No 2009-182, which was approved by the Board of Governors in October 2009. In sum, the opinion advises that a client’s filing a bar complaint may create a personal conflict for the lawyer in certain circumstances, but it does not create a per se conflict. A conflict exists only if there is a substantial risk that the lawyer’s representation of and responsibilities to the client would be materially limited by the lawyer’s own personal interests regarding the bar complaint. See Oregon RPC 1.7(a)(2).
The Scenario
A lawyer’s client files a bar complaint against the lawyer one week before trial. Client does not, however, fire the lawyer. Client’s complaint alleges that the lawyer failed to interview key witnesses and failed to adequately communicate with client about trial strategy. For his part, the lawyer says he is willing to interview client’s “key” witnesses even though the lawyer does not believe that they will be able to provide admissible testimony. Further, the lawyer maintains that he has made reasonable efforts to respond to client’s phone calls and to otherwise keep the client informed.
The question presented to the Legal Ethics Committee was whether the lawyer must withdraw because of client’s complaint. The answer is, of course, it depends.
The Analysis
Withdrawal is required under RPC 1.16(a) if, among other reasons, continued representation would result in a violation of the Rules of Professional Conduct. Thus, if a conflict exists according to the rules, and the lawyer is unable to secure the client’s’s consent to continued representation, then the lawyer would be required to withdraw.
Oregon RPC 1.7(a)(2) provides that a conflict exists if there is a significant risk that the lawyer’s representation of the client will be materially limited by a personal interest of the lawyer. Under the scenario presented, the committee identified potentially limiting interests to include the lawyer’s desire to avoid discipline by the bar or the lawyer’s personal resentment of the client for filing the bar complaint. Whatever the personal interest involved, if it creates a substantial risk that the lawyer’s representation of the client will be materially limited, then the lawyer may only continue the representation with the client’s informed consent, confirmed in writing. Moreover, the committee opined, consent will resolve the conflict only if the lawyer reasonably believes that he can provide competent and diligent representation notwithstanding the conflict. See RPC 1.7(b)(1).
While the committee acknowledged that the filing of a disciplinary complaint could raise concerns on a case-by-case basis, it declined to conclude that a bar complaint would create a per se conflict. In coming to this conclusion, the committee analogized a pending bar complaint to potential legal malpractice claim, a situation which the Oregon Supreme Court addressed in In re Knappenberger, 337 Or 15 (2004) and In re Obert, 336 Or 640 (2004).
In Knappenberger, the court evaluated whether a lawyer had violated the former self-interest conflict rule, DR 5-101(A)(1),1 when he continued to represent a client, without obtaining the client’s informed consent, after he made an error on appeal that could give rise to a malpractice claim against him. The court rejected a per se approach and instead held that a self-interest conflict exists only if “the lawyer’s error, and the pending or potential liability arising from that error, will or reasonably may affect the lawyer’s professional judgment. That conclusion will depend on the facts and circumstances of each case.” 337 Or at 26. The committee summarized the Court’s opinion as follows:
…the stronger the potential claim, with its correspondingly greater risk of harm to the lawyer’s own interests, the more significant risk there is that the claim will impair the lawyer’s ability to represent his or her client. Of course, a potential claim could motivate a lawyer to seek to correct an error before its harmful effects are realized, thereby further aligning lawyer’s and client’s interests. …But evidence that an attorney has recommended a course of action that would serve to conceal that error is likely to result in a finding of a conflict…
Citations omitted. The committee also cited In re Obert for the proposition that “there must be some reasonable likelihood that a lawyer’s judgment will be affected before a conflict will be found.” 336 Or at 648.
Utilizing the analysis of these two cases, the committee turned to the scenario at issue. It noted that the filing of a bar complaint carries the potential for public embarrassment, damage to a lawyer’s professional reputation and financial loss. However, the risks associated with client’s concerns that the lawyer’s failure to interview certain witnesses are minimal. Because the lawyer is in a far better position than the client to determine the admissibility of the witnesses’ testimony, the lawyer’s exposure to discipline is not great. In addition, because the lawyer is willing and able to interview the witnesses, there appears to be no motive for the lawyer to act contrary to the client’s best interest. Thus, in the absence of some clear indication that the lawyer was acting to protect his own, and not the client’s interests, the committee concluded there was little risk of a self-interest conflict based on the client’s complaint about the lawyer’s failure to interview witnesses.
The committee found the client communication issue more problematic. Oregon RPC 1.4 requires lawyers to keep clients “reasonably informed” about the status of a matter and to explain matters “to the extent reasonably necessary” so the client can make informed decisions about his case. Because the question of whether communication is adequate under RPC 1.4 is arguably more subjective, the lawyer is not in as good a position to predict the outcome of the bar complaint. Moreover, reasonable minds could differ as to whether the lawyer had met his obligations under RPC 1.4, making it more difficult to assess the lawyer’s liability exposure and the impact it might have on his representation of the client. Even so, the committee concluded that it would be unlikely that the complaint about lack of communication would create a self-interest conflict, given the Oregon Supreme Court’s apparent reluctance to assume that a lawyer’s professional judgment will or reasonably may be affected under such circumstances.
In the end, the committee cautioned that a prudent lawyer would avoid any questions about self-interest conflicts by obtaining the client’s informed consent, confirmed in writing, before continuing to represent a client who had filed a bar complaint against him or her.
Endnote
1. Former DR 5-101(A)(1) provided in part:
(A) Except with the consent of the lawyer’s client after full disclosure,
(1) a lawyer shall not accept or continue 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.
ABOUT THE AUTHOR
Helen Hierschbiel is deputy 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. 361, or by e-mail at hhierschbiel@osbar.org
Ethics opinions are published and updated on the bar’s website here.
An archive of Bar Counsel articles is available here.
© 2010 Helen Hierschbiel