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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Oregon Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 6-101(A)
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: Model Rules of Professional Conduct (ABA 1998)
OR Commentary: EOL §§ 8.2-.4

1.1:101      Model Rule Comparison

DR 6-101(A) is identical to MR 1.1.

1.1:102      Model Code Comparison

DR 6-101(A) more fully particularizes the elements of competence than did ABA Model Code of Professional Responsibility Disciplinary Rules (MC DR) 6-101(A).

1.1:200   Disciplinary Standard of Competence

Primary OR References: DR 6-101(A)
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 31:201, ALI-LGL § 16, Wolfram § 5.1
OR Commentary: EOL §§ 8.2-.4, 24.4

Attorneys are obligated to provide competent representation. DR 6-101(A).

Just as is indicated in the commentary to MR 1.1, “competence” does not require special training or prior experience as long as the lawyer possesses basic legal skills such that he or she is able to represent a client adequately through study and preparation. At a minimum, the lawyer must either be familiar with well-settled legal principles applicable to a particular problem or be able to conduct and actually conduct reasonable research to learn them. The lawyer is measured in these efforts against the objective standard of other lawyers engaged in practice in similar fields, and each case of alleged incompetence must be judged on its facts. See Geoffrey C. Hazard, Jr. & W. William Hodes, 1 The Law of Lawyering 6-9 (2d ed 1990). In addition to a basic level of knowledge, the rule also requires thoroughness and preparation. Again, the thoroughness required is generally measured objectively.

For example, in In re Spies, a lawyer who had “little to no experience in domestic relations practice” agreed to obtain an uncontested dissolution of marriage for the clients and then failed to file accurate and timely dissolution documents, resulting in a three-and-one-half-year delay. 316 Or 530, 533, 852 P2d 831 (1993). Her representation outside her area of expertise without acquiring adequate knowledge or skill was one of the findings supporting disbarment. See also In re Gastineau, 317 Or 545, 555, 857 P2d 136 (1993) (“[I]f a lawyer does a poor job, but the client fortuitously or through the efforts of others obtains a good result, that does not excuse the lawyer from providing competent representation or justify neglecting the case” but result may be relevant in determining whether the fee charged in the matter was excessive); In re Odman, 297 Or 744, 687 P2d 153 (1984) (lawyer violated DR 6-101(A) when, during four years he worked on estate, he filed many documents improperly or late, did not know basic steps of administering estate, and took no steps to study or otherwise become qualified).

1.1:300   Malpractice Liability

Primary OR References: DR 6-102
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:101, ALI-LGL § 49-54 , Wolfram § 5.6
OR Commentary: EOL ch 19, § 20.5

1.1:310      Relevance of Ethics Codes in Malpractice Actions

Violation of Oregon’s DRs does not constitute negligence per se or create a private cause of action. See Bob Godfrey Pontiac v. Roloff, 291 Or 318, 331-32, 630 P2d 840 (1981); Clausen v. Carstens, 83 Or App 112, 120, 730 P2d 604 (1986); see also Hilt v. Bernstein, 75 Or App 502, 510, 707 P2d 88 (1985) (regarding conflicts of interest), rev den 300 Or 545 (1986). As a practical matter, however, an attorney who violates a disciplinary rule is at greater risk of being subject to a malpractice claim. Similarly, an attorney whose conduct results in civil liability for negligence or an intentional tort may be subject to disciplinary proceedings.

1.1:320      Duty to Client [see also 1.1:330]

The duty a lawyer owes his or her client in a professional negligence case is the applicable standard of care. An attorney’s failure to satisfy that standard of care in representing a client constitutes a breach of that duty.

1.1:330      Standard of Care

An attorney is required to use the care, skill, and diligence ordinarily used by lawyers in the community in similar circumstances. See Childers v. Spindor, 84 Or App 407, 410, 733 P2d 1388 (1987), reh’g granted 91 Or App 119 (1988); Page v. Cushing, 80 Or App 690, 697, 724 P2d 323 (1986).

1.1:335      Requirement of Expert Testimony

[The discussion of this topic has not yet been written.]

1.1:340      Causation and Damages

Even if a lawyer fails to satisfy the standard of care in the handling of a particular matter, no cause of action can be maintained against the lawyer for legal malpractice unless the additional elements of causation and damages are established. As the court stated in Chocktoot v. Smith, 280 Or 567, 570, 571 P2d 1255 (1977), “The jury in the malpractice case is called upon, in effect, to decide what the outcome for plaintiff would have been in the earlier case if it had been properly tried, a process that has been described as a ‘suit within a suit.’”

1.1:350      Waiver of Prospective Liability [see 1.8:910]

1.1:360      Settlement of Client's Malpractice Claim [see 1.8:920]

1.1:370      Defenses to Malpractice Claim

(A) Damages

One of the most frequent defenses to a legal malpractice claim is that, regardless of any attorney negligence, there was no damage. For example, an attorney may admit negligence in handling a case but defend himself or herself on the grounds that the case itself had no value. See Wilkinson v. Walker, 84 Or App 477, 734 P2d 385, rev den 303 Or 535 (1987); Olson v. Wheelock, 68 Or App 160, 680 P2d 719 (1984).

(B) "Avoidable Consequences"

Even if there are damages, legal malpractice plaintiffs must take reasonable steps to minimize their damages following a loss. They must avoid or minimize consequences that a reasonable person under the same or similar circumstances would avoid.

(C) Comparative Negligence

The comparative-negligence defense arises in a few specific fact situations:

(1) the client fails to supervise, review, or inquire about the attorney’s representation;

(2) the client fails to follow the attorney’s advice or instructions;

(3) the client fails to provide essential information;

(4) the client actively interferes with the attorney’s representation or fails to complete certain responsibilities; or

(5) the client fails to pursue remedies to avoid or mitigate the effect of an attorney’s negligence.

This defense is used most successfully when the client is sophisticated, the attorney’s advice and actions are well documented, and the attorney’s credibility is not in question.

(D) Judgmental Immunity

This traditional incarnation of the judgmental-immunity defense—that an attorney was not liable for an error in the exercise of professional judgment—is now obsolete. The key question now is whether the lawyer acted reasonably and up to the required standard of care, i.e., whether the lawyer made an “informed judgment.” Copeland Lumber Yards v. Kincaid, 69 Or App 35, 38, 684 P2d 13, rev den 298 Or 37 (1984).

1.1:380      Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

(A) Breach of Contract

An attorney’s promise to produce a particular result, apart from an agreement to exercise a general standard of care to prosecute a claim or perform legal work for the client, may support a claim by the client against the attorney for breach of contract. See Allen v. Lawrence, 137 Or App 181, 903 P2d 919 (1995), rev den 322 Or 644 (1996).

(B) Breach of Fiduciary Duty

In estate administration, the most common malpractice allegations are breach of fiduciary duty as trustee, conservator, or personal representative or negligence in improper or premature distribution of estate assets. Conduct causing liability may be intentional malfeasance, preferential treatment of favored beneficiaries by premature or excess distributions, and clerical or computational errors. The attorney may also owe duties to persons other than the retaining client, e.g., beneficiaries of the estate. See, e.g., Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987).

(C) Other Liabilities

(1) Information from Client

Blind reliance on the client to provide complete and accurate information will not insulate the lawyer from liability for, for example, a mistimed bankruptcy filing. If the client provides the lawyer with improper or incomplete information, the attorney can still be held responsible for failure to ask additional questions that would have led to the receipt of more complete and accurate information from the client. Whether the lawyer is ultimately responsible will be determined by the reasonableness of the lawyer’s inquiry and, perhaps, the sophistication of the client.

(2) Unauthorized Acts or Representations

The lawyer may be at risk with either the client or the adverse party if the lawyer makes representations or takes other actions that are beyond the scope of those authorized by the client.

(3) Conflicts of Interest (Only Regarding Malpractice)

Conflicts do not result in liability per se. See Hilt v. Bernstein 75 Or App 502, 707 P2d 88 (1985) (allegations of negligence premised on violation of DRs does not constitute negligence as a matter of law in civil action for damages). Nevertheless, a conflict of interest can damage the client or make the attorney vulnerable to accusations of malpractice. For example, an unresolved or disregarded conflict increases the attorney’s vulnerability to accusations of fraud and other wrongful or improper conduct. See DR 5-101(A), 5-104(A). However, a disclosure and consent letter sent by the lawyer to the client with a copy to be initialed by the client and returned to the lawyer will go a long way toward neutralizing any subsequent adverse malpractice exposure based upon conflicts.

(4) Support Staff Errors

The guiding maxim regarding clerical and support staff in a law office is that the supervising attorney will be held responsible for errors committed by subordinates. The lawyer will either be vicariously liable through respondeat superior or be found to be actually negligent for failing to properly supervising or perform the tasks, regardless of whether those jobs were delegated to others.

(5) Securities Violations

The bases for a claim of unlawful sales of securities are either failure to register the securities (ORS 59.115(1)(a)) or securities fraud (ORS 59.115(1)(b)). Usually, common-law fraud is alleged in connection with securities fraud claims. In securities claims against lawyers, privity defenses generally do not apply; both clients and nonclients can initiate causes of action for fraud and other intentional torts. The lawyer need not be the primary “mover and shaker” to have exposure for a securities law violation. See, e.g., Prince v. Brydon, 307 Or 146, 764 P2d 1370 (1988).

(6) Unperfected Security Interests

Many legal malpractice claims result from the lawyer’s failure to perfect a security interest on behalf of the client. Invariably, the problem does not surface until sometime later when the client wants to enforce the contract and acquire and sell the collateral. For example, Uniform Commercial Code renewal problems frequently arise from miscommunication (or noncommunication) between the lawyer and the client as to the respective tasks to be performed by the lawyer and the client.

(7) Estate Planning

The biggest risk for a lawyer with respect to estate planning is the failure to carry out the testator’s instructions. This can range from failure to include a beneficiary to failure, as a matter of law, to accomplish the desired result. The Oregon Supreme Court, in Hale, 304 Or 281, has made clear that traditional privity rules generally will not afford the lawyer a defense when beneficiaries have negligently been omitted. If the estate (and therefore the beneficiaries) have to pay more estate taxes because of improper drafting, the same rule would probably apply.

(8) Domestic Relations

Common complaints regarding domestic-relations practice include settlements or decrees not enforceable as intended; improper valuation of assets in divorce, resulting in improper and inequitable distribution; and client postsettlement remorse or complaint of inadequate settlement representation or advice.

(9) Legal Services vs. Business Involvement

A pitfall in representing business clients is the failure to maintain sufficient separateness so that the attorney does not become responsible for the failure or success of the business.

1.1:390      Liability When Non-Lawyer Would Be Liable

[The discussion of this topic has not yet been written.]

1.1:400   Liability to Certain Non-Clients

Primary OR References: DR 4-101(C)(3), 7-102(A)
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 71:1101, ALI-LGL § 51, Wolfram § 5.6
OR Commentary: EOL §§ 6.3, 9.6, 19.3, 19.18

1.1:410      Duty of Care to Certain Non-Clients

Traditionally, an attorney could be liable for negligence only to a client, not to third parties. Attorney-client privity had to exist between the plaintiff and the defendant before the plaintiff could maintain a legal malpractice suit against the defendant lawyer. See Currey v. Butcher, 37 Or 380, 390, 61 P 631 (1900).

More recently, attorney-client privity has not always been necessary for an attorney’s liability for negligence or legal malpractice. See, e.g., McEvoy v. Helikson, 277 Or 781, 786, 562 P2d 540 (1977) (exception to privity rule when attorney acts as escrow); Metzker v. Slocum, 272 Or 313, 537 P2d 74 (1975) (following cases in other jurisdictions that dispense with privity and apply policy involving balancing of various factors). The greatest inroads in privity have been in the area of will drafting and the subsequent impact on estates and beneficiaries. See, e.g., Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987) (intended will beneficiaries may have action in contract against attorney). There are a number of tort claims by nonclients that are permitted despite lack of privity, including, but not limited to, intentional torts, defamation, and breach of fiduciary duty. A lawyer may also be liable to a nonclient to whom the lawyer has made representations or taken other actions beyond the scope of those authorized by the client.

1.1:420      Reliance on Lawyer's Opinion [see also 1.2:210; 2.3:300]

Whenever an attorney knows or should know that a nonattorney may rely on the attorney’s advice in connection with a legal matter, the attorney should expect that an attorney-client relationship may well be found to exist.

1.1:430      Assisting Unlawful Conduct

DR 7-102(A) prohibits a lawyer from assisting the client in illegal or fraudulent conduct. The zealousness required of all attorneys is limited by this prohibition.

In some circumstances, the restriction against assisting the client in illegal or fraudulent conduct is broader than the ethical restrictions on the lawyer’s personal criminal conduct unrelated to the practice of law. Thus the lawyer is prohibited by DR 7-102(A)(7) from assisting or counseling the client in any illegal conduct, and by DR 7-102(A)(7) and (8) from personally participating in any illegal activity as part of the representation of the client. These prohibitions include conduct that is not criminal but is nonetheless prohibited by statute. See, e.g., In re Hockett, 303 Or 150, 161, 734 P2d 877 (1987) (assisting in fraud upon creditors held to violate rule).Though an attorney who acts as counsel to an employer-fiduciary of an employee benefit plan pursuant to the Employee Retirement Income Security Act of 1974 represents the employer and not the employee-beneficiaries, the attorney must refrain from assisting the employer in breaching any fiduciary duties owed by the employer to the employees. OSB Legal Ethics Op No 1991-119.

1.1:440      Knowledge of Client's Breach of a Fiduciary Duty

If a client tells his or her attorney about her past breach of fiduciary duty in the course of trying to obtain legal advice, that communication is subject to attorney-client privilege. See, e.g., State v. Jancsek, 302 Or 270, 275, 730 P2d 14 (1986). Unless one of the exceptions to attorney-client confidences enumerated in DR 4-101 applies, an attorney may not reveal a client’s past wrongs. An attorney may, however, call upon a client to correct her past wrongs, and, if the client refuses to do so, the attorney may seek leave to resign. See DR 2-110(A), 2-110(C)(1)(e). The attorney must seek leave to withdraw if failure to do so would cause the attorney to become directly involved in wrongdoing. See DR 7-102(A)(7); In re Johnson, Or S Ct No S42475 (1995) (attorney violated DR 7-102(A)(7) when he failed to call upon his client to reveal fraud to SAIF after his client collected workers’ compensation benefits to which he was not entitled); see also OSB Legal Ethics Op No 1991-119.

If an attorney is notified of the attorney’s client’s intent to commit a future breach of fiduciary duty, the attorney may disclose the client’s intent and the information necessary to prevent the breach. The attorney could also seek to withdraw and say nothing. Id.

1.1:450      Failing to Prevent Death or Bodily Injury

DR 4-101(C)(3) permits, but does not require, an attorney to reveal the intention of a client to commit any crime, not just a crime involving risk of serious physical injury. Cf. MR 1.6(b)(1). DR 4-101(C)(3) does not, however, permit disclosure of past, even recent past, client crimes of which the attorney has learned through privileged communications.

1.1:500   Defenses and Exceptions to Liability

Primary OR References:
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 54, 57, Wolfram § 5.6
OR Commentary:

1.1:510      Advocate's Defamation Privilege

[The discussion of this topic has not yet been written.]

1.1:520      Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

[The discussion of this topic has not yet been written.]

1.1:530      Assisting Client to Break a Contract

Neither the DRs nor statutes prohibit a lawyer from assisting or counseling a client’s breach-of-contract obligations, since breach of a contract is not per se illegal or fraudulent. OSB Legal Ethics Op No 1991-92. Similarly, a lawyer may ethically buy up a client’s bad checks to avoid criminal prosecution of the client. OSB Legal Ethics Op No 1991-18.

1.1:600   Vicarious Liability [see 5.1:500]

Primary OR References:
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 58, Wolfram § 5.6
OR Commentary:

[The discussion of this topic has not yet been written.]