skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-101(A)(1) and (B)(1), 7-102(A)(6) and (7), 7-106(A), 2-110(C)
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:
OR Commentary:

1.2:101      Model Rule Comparison

Although MR 1.2(a) has no direct counterpart in the DRs, DR 7-101(A)(1) provides that a lawyer “shall not intentionally . . . [f]ail to seek the lawful objectives of the lawyer’s client through reasonably available means permitted by law and these disciplinary rules . . . . A lawyer does not violate this Disciplinary Rule, however, by . . . avoiding offensive tactics . . . .”

MR 1.2(b) has no counterpart in the DRs.

With regard to MR 1.2(c), DR 7-101(B)(1) provides that a lawyer may, “[w]here permissible, exercise the lawyer’s professional judgment to waive or fail to assert a right or position of the lawyer’s client.”

With regard to MR 1.2(d), DR 7-102(A)(7) prohibits a lawyer from “[c]ounsel[ing] or assist[ing] the lawyer’s client in conduct that the lawyer knows to be illegal or fraudulent.” DR 7-102(A)(6) provides that a lawyer shall not “[p]articipate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false.” DR 7-106(A) provides that a lawyer “shall not disregard or advise the lawyer’s client to disregard a standing rule of a tribunal or a ruling of a tribunal . . . but the lawyer make take appropriate steps in good faith to test the validity of such rule or ruling.”

With regard to MR 1.2(e), DR 2-110(C)(1)(c) provides that a lawyer may withdraw from representation if a client “[i]nsists” that the lawyer engage in conduct that is illegal or prohibited under the disciplinary rules. DR 2-110(C)(2) permits withdrawal when the “lawyer’s continued employment is likely to result in a violation of a Disciplinary Rule.” (Note also that DR 2-110(C)(1)(e) permits the lawyer’s withdrawal when the client “[i]nsists that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under these disciplinary rules.”)

1.2:102      Model Code Comparison

The DRs—specifically portions of DR 7-101(A)(1) and (B)(1), 7-102(A)(6) and (7), 7-106(A), and 2-110(C)essentially follow their counterparts in the MC.

1.2:200   Creating the Client-Lawyer Relationship

Primary OR References: DR 2-110(B) and (C), 6-101, 7-101(A); OEC 503(1)(a)
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 14-18, Wolfram § 9.2
OR Commentary: EOL §§ 5.12, 5.15, 6.2-.7, 8.8-.9, 8.12, 9.12

1.2:210      Formation of Client-Lawyer Relationship [see also 1.16:200-300]

The trend in Oregon is to find the existence of an attorney-client relationship whenever the would-be client reasonably believes under the circumstances that the client is entitled to look to the attorney for advice. See, e.g., In re Weidner, 310 Or 757, 801 P2d 828 (1990); In re Mettler, 305 Or 12, 18-20, 748 P2d 1010 (1988); see also OSB Legal Ethics Op Nos 1991-85, 1991-46. 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.

1.2:220      Lawyer's Duties to Prospective Client

An attorney’s discussion with a prospective client, in which matters of a confidential nature are communicated, can be subject to protection by the attorney-client privilege and, therefore, to applicable conflict-of-interest rules or malpractice liability, even if no formal representation of the client ever occurs. See, e.g., OEC 503(1)(a) (definition of client includes “a person . . . who consults a lawyer with a view to obtaining professional legal services from the lawyer”).

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

1.2:240      Client-Lawyer Agreements

(A) Fee Agreements [see 1.5:200]

(B) Waiver of Prospective Liability [see 1.8:910]

1.2:250      Lawyer's Duties to Client in General [see also 1.4:200]

The lawyer is an agent of the client and must act in accordance with the client’s lawful directives. See, e.g., Johnson v. Tesky, 57 Or App 133, 136-37, 643 P2d 1344 (1982); OSB Legal Ethics Op Nos 1991-76, 1991-26.

Pursuant to DR 6-101(A), an attorney must provide “competent representation to a client.” Pursuant to DR 6-101(B), an attorney “shall not neglect a legal matter” entrusted to the attorney; this carries with it an affirmative duty to keep the client reasonably informed of the status of the matter. DR 7-101(A)(1) makes it professional misconduct for a lawyer intentionally to “[f]ail to seek the lawful objectives of the . . . client.”

DR 7-101(A)(2) makes it professional misconduct for an attorney intentionally to “[f]ail to carry out a contract of employment entered into with a client for professional services,” unless withdrawal is required or permitted under other DRs. Failure to communicate with clients can also constitute a violation of DR 7-101(A)(2). A lawyer may not excuse a failure to carry out a contract of employment based on the client’s failure to pay the lawyer’s fee. OSB Legal Ethics Op No 1991-1. The only ethically appropriate course of action for the unpaid attorney is to withdraw from employment under the terms of DR 2-110(C)(1)(f). See OSB Legal Ethics Op No 1991-33.

1.2:260      Client's Duties to Lawyer

The client has a duty to pay the lawyer’s reasonable fees. The client also has a duty to cooperate by being truthful and candid at all times, to maintain periodic contact with the attorney, and to provide the attorney with information necessary for the lawyer’s representation of the client.

1.2:270      Termination of Lawyer's Authority [see 1.16:200-600]

1.2:300   Authority to Make Decisions or Act for Client

Primary OR References:
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA § 31.301, ALI-LGL §§ 21-23, 25-29, Wolfram §§ 4.4, 4.6
OR Commentary: EOL §§ 8.9, 8.13, 10.17

1.2:310      Allocating Authority to Decide Between Client and Lawyer

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

1.2:320      Authority Reserved to Client

It is the client’s decision whether to accept a settlement offer. See OSB Legal Ethics Op Nos 1991-54, 1991-26.

If the client wishes to pursue a claim the attorney believes has no merit, the attorney must consult with the client and discuss the options in light of the lawyer’s opinion. See In re Geurts, 290 Or 241, 246 n 6, 620 P2d 1373 (1980). However, DR 2-110(C)(1)(e) permits withdrawal when the client “[i]nsists that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer.”

1.2:330      Authority Reserved to Lawyer

DR 7-101(B) is covered by MR 1.3.

1.2:340      Lawyer's Authority to Act for Client [see also 1.1:410]

The lawyer is an agent of the client and, like any other agent, must act in accordance with the client’s lawful directives. A lawyer may negotiate a check on a client’s behalf or settle a client’s case only if the lawyer is authorized by the client to do so. OSB Legal Ethics Op Nos 1991-26, 1991-33; see also In re Force, 8 DB Rptr 219 (1994) (lawyer disciplined for failure to consult with lawyer’s client regarding value of merits of case before settlement negotiations). Attorneys who make unauthorized settlement offers may bind themselves to the adverse parties, even if the clients are not obligated. The lawyer may be liable either to 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.

1.2:350      Lawyer's Knowledge Attributed to Client

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

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

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

1.2:370      Appearance Before a Tribunal

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

1.2:380      Authority of Government Lawyer

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

1.2:400   Lawyer's Moral Autonomy

Primary OR References:
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram § 10.4
OR Commentary:

1.2:500   Limiting the Scope of Representation [see 1.5:210(B)(2)]

Primary OR References:
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 19, Wolfram § 5.6.7
OR Commentary:

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

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

1.2:600   Prohibited Assistance

Primary OR References: DR 7-102(A)(7)
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 94, Wolfram § 13.3
OR Commentary:

1.2:610      Counseling Illegal Conduct

DR 7-102(A)(7) prohibits a lawyer from counseling the lawyer’s client in conduct that the lawyer knows to be illegal.

1.2:620      Assisting Client Fraud

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

1.2:630      Counseling About Indeterminate or Uncertain Law

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

1.2:700   Warning Client of Limitations on Representation [see 1.5:210(B)(1)]

Primary OR References:
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 105
OR Commentary: EOL §§ 19.14, 19.16

1.2:800   Identifying to Whom a Lawyer Owes Duties

Primary OR References: DR 5-105, 7-104(A)(1)
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 50, 51, 96, 156A, Wolfram § 7.2
OR Commentary: EOL §§ 6.9, 10.9, 12.13

1.2:810      Prospective Clients [see 1.2:220]

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

1.2:830      Representing an Entity [see also 1.6:470-1.6:475]

(A) Corporations as Clients

Generally speaking, an attorney who represents a corporation is deemed to represent only the corporation and not its officers, directors, shareholders, or employees as such.

The Oregon Supreme Court has stated, however, that representation of a corporation that is wholly owned by a single family or by one person is per se representation of the shareholders. See, e.g., In re Banks, 283 Or 459, 474-75, 584 P2d 284 (1978). An attorney-client relationship also can be created with officers, directors, shareholders, or employees if the attorney does legal work for them. Cf. MR 1.13(d)-(e).

(B) Partnership or Unincorporated Association as Clients

Though the Oregon Supreme Court has not spoken authoritatively on this matter, the weight of present Oregon authority strongly suggests that the court should hold that, ordinarily, representation of a general or limited partnership or trade association is not, as a matter of law, representation of any of the partners or association members. See OEC 503(1)(a); OSB Legal Ethics Op No 1991-27.

However, in resolving this issue definitively, the Oregon Supreme Court will likely apply the reasonable-expectations-of-the-client test. As such, when the circumstances negate a reasonable belief that an individual attorney-client relationship exists with a partner, no such relationship should be found to exist.

(C) Governments as Clients

Oregon is likely to apply some variant of the entity theory to government clients such that representation of a city as such should not, as a matter of law, be deemed to constitute representation of the mayor or of city employees. Similarly, representation of a political subdivision of the state should not, as a matter of law, constitute representation of the state, and vice versa.

OSB Legal Ethics Op No 1991-122 asserts that, as a general rule, representation of any part of a state (or city or county) would generally constitute representation of all parts of the state (or city or county) as a matter of law. See also OSB Legal Ethics Op No 1993-134.

1.2:840      Representing a Fiduciary [see also 1.1:440]

In Oregon, the general rule is that an attorney who represents a fiduciary represents only the fiduciary, not the beneficiaries. See OSB Legal Ethics Op Nos 1991-119, 1991-62. The attorney, who certainly owes a fiduciary duty to the fiduciary-client, may also owe certain duties to the beneficiaries, but such potential duties do not render the beneficiaries to be the attorney’s clients.

1.2:850      Class Action Clients

There is authority that from the time a class is certified, if not before, all members of a plaintiff’s class are clients of class counsel for purposes of DR 7-104(A)(1), if not for other purposes, unless and until they opt out of the class. Putative class members are commonly treated as if they were represented by the plaintiff’s counsel. On the other hand, courts can, in appropriate cases, limit the conflict between class action counsel and potential class action members.

In the event of a conflict between plaintiffs over whether a particular settlement should be accepted, the national trend is for courts to call on class counsel to litigate the fairness of the settlement even though some class members disagree. Even if Oregon follows this trend, it will not free class action counsel from DR 5-105 conflict-of-interest problems.