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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.3   Rule 1.3 Diligence [see also 3.2]

1.3:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 6-101(B), 7-101(A)(1) and (3)
Background References: ABA Model Rule 1.3, ABA Model Code DR 6-101, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 8.5-.8

1.3:101      Model Rule Comparison

The DRs do not contain a direct counterpart to MR 1.3. DR 6-101(B) provides “[a] lawyer shall not neglect a legal matter entrusted to the lawyer.” DR 7-101(A)(1) provides 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.” DR 7-101(A)(3) provides a lawyer “shall not intentionally . . . [p]rejudice or damage the lawyer’s client during the course of the professional relationship . . . .”

1.3:102      Model Code Comparison

The relevant DRs—DR 6-101(B), 7-101(A)(1), and (3)—are identical to provisions in the ABA Model Code.

1.3:200   Diligence and "Zeal"

Primary OR References: DR 6-101(B), 7-101(A)
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 16, Wolfram § 10.3
OR Commentary: EOL §§ 8.6, 8.10, 8.12-.14

(A) Diligence

Isolated instances of ordinary negligence may not warrant discipline under DR 6-101(B), though even a single instance of neglect, if prolonged, can result in discipline. Cases involving numerous or repeat instances and/or resulting prejudice to the client tend to result in more substantial discipline. See, e.g., In re Thies, 305 Or 104, 750 P2d 490 (1988); In re Dixson, 305 Or 83, 750 P2d 157 (1988).

Although the Oregon Supreme Court basically will not recognize any excuse for neglect of a client’s affairs, it will take into account personal situations—e.g., illness and/or substance abuse, personal problems, or busy practice—in determining the proper sanction. The absence of actual prejudice to the client has no bearing on whether there is a violation of DR 6-101(B); it can only affect the sanction ordered.

(B) "Zeal"

Intent on the part of the lawyer is a material and key element of proof of violation of DR 7-101(A), which is not the case for violations of DR 6-101. In re Lewelling, 298 Or 164, 167, 690 P2d 501 (1984). Neither “reckless indifference” nor conduct that negligently prejudices and damages a client is sufficient to constitute violation of this rule. In re Bridges, 298 Or 53, 60, 688 P2d 1335 (1984); In re Collier, 295 Or 320, 328, 667 P2d 481 (1983). That the lawyer’s efforts were ineffectual and resulted in a poor result is likewise insufficient to demonstrate intent. In re Gastineau, 317 Or 545, 857 P2d 136 (1993). The Oregon Supreme Court has held, however, that the requisite mental capacity may be demonstrated by conduct. In re Loew, 292 Or 806, 642 P2d 1171 (1982).

The attorney must continue to act zealously on the client’s behalf for as long as the attorney-client relationship continues. A client’s failure to pay the lawyer’s fee is no excuse for the lawyer’s failure to zealously represent the client. However, an unpaid attorney may withdraw from employment under the terms of DR 2-110(C)(1)(f). Likewise, an attorney’s withdrawal may be appropriate under DR 2-110(C)(1)(d) if the client’s conduct “renders it unreasonably difficult for the lawyer to carry out the lawyer’s employment effectively.” A client’s incompetence makes the lawyer’s duty to act on the client’s behalf even more profound.

1.3:300   Promptness

Primary OR References:
Background References: ABA Model Rule 1.3, Other Jurisdictions
Commentary: ABA/BNA § 31:401, ALI-LGL § 16, Wolfram § 10.3
OR Commentary:

(A) Expediting Litigation [See 3.2]

(B) Duty to Keep the Client Reasonably Informed [See 1.4:200]