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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 4-101, ORS 9.460(3)
Background References: ABA Model Rule 1.6, ABA Model Code DR 4-101, Other Jurisdictions
Commentary: ABA Model Rules of Professional Conduct (ABA 1998)
OR Commentary:

1.6:101      Model Rule Comparison

MR 1.6 uses a single standard to protect all information about a client “relating to representation,” whether acquired before or after the relationship’s existence. DR 4-101 articulates a the two-pronged duty. Under DR 4-101, the requirement applies to information protected by the attorney-client privilege and to information “gained in” the professional relationship that “the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” MR 1.6(a) permits a lawyer to disclose information when impliedly authorized to so do in order to carry out representation, whereas under DR 4-101(B) and (C), a lawyer is not permitted to reveal “[c]onfidences” unless the client first consents after disclosure.

1.6:102      Model Code Comparison

DR 4-101 tracks the language of MC DR 4-101. ORS 9.460(3) requires an attorney to “[m]aintain the confidences and secrets of the attorney’s clients consistent” with the established rules of professional conduct.

1.6:200   Professional Duty of Confidentiality

Primary OR References: DR 4-101, ORS 9.460(3), OEC 503
Background References: ABA Model Rule 1.6, ABA Model Code DR 4-101, EC 4-2, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.1, 6.7
OR Commentary: EOL §§ 7.2-.5, 16.5

1.6:210      Definition of Protected Information

For the purposes of ORS 9.460(3), “confidence” and “secret” should be treated as they are defined under DR 4-101(A).

(A) Confidence [see also 1.2:220]

“Confidence” includes matters subject to the evidentiary attorney-client privilege, which is codified at OEC 503. See, e.g., State v. Keenan/Waller, 307 Or 515, 520, 771 P2d 244 (1989) (referring to “the evidentiary privilege for confidential communications”). A confidential communication is one as defined under OEC 503(1)(b), i.e., transmitted between attorney and client (or between a representative of the attorney and a representative of the client) for purposes of obtaining legal advice. State v. Jancsek, 302 Or 270, 275, 730 P2d 14 (1986).

As a general proposition, a communication will not be subject to attorney-client privilege if it is made in the presence of, or is conveyed to, third parties. See, e.g., Stark Street Properties v. Teufel, 277 Or 649, 657, 562 P2d 531 (1977). Communications that relate purely to business or personal matters and are unrelated to the provision of legal advice do not qualify for the privilege.

Pursuant to OEC 503(1)(e), a communication may be privileged if made to or from “one employed to assist the lawyer in the rendition of professional legal services.” This can include experts hired to assist the lawyer in rendering legal advice, as well as the lawyer’s own employees.

The definition of “[r]epresentative of the client” contained in OEC 503(1)(d) is potentially more difficult to apply. Basically, a privileged communication may exist between any employee of a client and the attorney for that client as long as the basic requirements of confidentiality are met and the purpose of the communication is to assist the client in obtaining or implementing legal advice. In Jancsek, 302 Or 270, the court held that only an entity-client, as distinct from an individual, can have a “[r]epresentative of the client” within the meaning of OEC 503(1)(d). However, this holding may need narrow construction to avoid disastrous and presumably unintended results (e.g., attorney-client privilege should apply when an individual client communicates with an attorney by dictating a letter that is typed by the client’s secretary). “Representative of the client” arguably is sufficiently broad to cover conversations between a client’s attorney and former employees of that client. Upjohn Co. v. United States, 449 US 383, 101 S Ct 677, 66 L Ed 2d 584 (1981); OSB Legal Ethics Op No 1991-80.

(B) Secret

The term “secret” is not limited to matters covered by the attorney-client privilege. See DR 4-101(A); Keenan/Waller, 307 Or at 519. “Secret” includes all information gained by the attorney during the attorney-client relationship if the client has requested that the information be held secret or if the disclosure of the information would embarrass or be detrimental to the client. Information can constitute a secret even if the attorney obtains it from a source other than the client. See also In re Anderson, 12 DB Rptr 136 (1998) (attorney disclosed personally embarrassing information about his client to third party without client’s consent).

In Keenan/Waller, 307 Or at 519-20, the court stated in dictum that there could well be times when the statutory obligation of secrecy contained in former ORS 9.460(5) (1989) (now ORS 9.460(3)) would take priority over an attorney’s duty to testify. From a disciplinary perspective and until the law is clarified, the safer course for an attorney confronted with a demand for testimony about a client secret may be to refuse to testify unless and until a court orders that the testimony be given.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

Subject to specific exceptions, both ORS 9.460(3) and DR 4-101 prohibit any revelation or use of client confidences or secrets without client consent, regardless of whether the client is or may be injured by that use. That is, lack of actual injury to the client is not a defense to a charge of violation of ORS 9.460(3) or DR 4-101. On the other hand, no violation exists if an attorney reveals to another what the attorney is doing in abstract or hypothetical terms and the information cannot be traced to a particular client.

DR 4-101(D) requires a lawyer “exercise reasonable care” to prevent the lawyer’s representatives from disclosing client confidences or secrets. Attorneys must therefore take reasonable steps to ensure that their agents and employees understand and abide by the attorney’s duty of confidentiality and secrecy. See, e.g., OSB Legal Ethics Op No 1991-44. But see State v. Charlesworth/Parks, 151 Or App 100, 951 P2d 153 (1997) (attorney’s failure to prevent employee from disclosing client secrets, as distinct from privileged communication, not grounds to suppress evidence obtained as result of disclosure). Secretaries and other jointly employed personnel in an office-sharing arrangement are normally considered to be the individual employees of each of the lawyers involved, for purposes of client confidences under DR 4-101(D).

If lawyers involved in an office-sharing arrangement handle matters against each other, they must take specific steps to ensure that client confidences are maintained. Telephone systems, for example, must be configured so that client confidences and legal advice are not available to shared personnel. Mail, too, must not be opened or read by shared personnel. Files can be maintained in the same space, but they must be segregated and access limited to nonshared personnel only. Finally, lawyers must not use the same secretary if they are handling matters against one another. See OSB Legal Ethics Op No 1991-50.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.6:330; 1.6:450;1.8:300]

A lawyer shall not knowingly “[u]se a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.” DR 4-101(B)(3). Exceptions under DR 4-101(C) include disclosure to establish a lawyer’s defense and disclosure in the lawyer’s preliminary discussions to sell her or his practice.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

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

1.6:250      Information Imparted in Lawyer Counseling Programs

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

1.6:260      Information Learned Prior to Becoming a Lawyer

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

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary OR References: DR 4-101, 7-101, 7-102(B), 10-101(B), OEC 503, ORS 9-460(3), 9.527(3)
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 59-66, Wolfram §§ 6.4, 6.7
OR Commentary: EOL §§ 7.6-.10, 12.5-.6, 12.10, 13.11-.13

1.6:310      Disclosure to Advance Client Interests or with Client Consent

An attorney may disclose client confidences or secrets when the client consents after full disclosure. DR 4-101(C)(1). Under DR 10-101(B)(1), “‘[f]ull disclosure’ means an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent.” In the context of conflicts of interest, DR 4-101, 5-101, 5-105; limiting business relations with a client, DR 5-104; and settling similar claims of clients, DR 5-107, “full disclosure” also includes a recommendation that the recipient seek independent legal advice regarding whether consent should be given and obtain a contemporaneous confirmation in writing.

MR 1.6(a) permits “disclosures that are impliedly authorized in order to carry out the representation.” DRs do not have a direct counterpart but do provide that, as part of the attorney’s representation of a client, the attorney 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.” DR 7-101(B)(1). This arguably recognizes that, in some situations, an attorney may have implied consent to waive attorney-client privilege or to reveal a client secret.

1.6:320      Disclosure When Required by Law or Court Order

A client’s confidences or secrets may be disclosed when required by law or by court order. DR 4-101(C)(2); see, e.g., State v. Keenan/Waller, 307 Or 515, 520 n 4, 771 P2d 244 (1989); OSB Legal Ethics Op No 1991-34; see also DR 7-101(C) (permitting attorney, in some cases, to take protective action on behalf of client who is incapable of acting in his or her own interest).

As a matter of blackletter law, there is no “court order” or “disclosure required by law” exception within ORS 9.460(3) or OEC 503. Thus it is possible to assert that no such exception exists with respect to the statutory, as distinct from the DR-based, attorney-client privilege. ORS 9.527(3) would appear to provide an exception, however, since an attorney may be disciplined under that section if the attorney “has willfully disobeyed an order of a court requiring the [attorney] to do or forbear an act connected with the legal profession.” See also In re Clostermann, 276 Or 261, 554 P2d 467 (1976).

1.6:330      Disclosure in Lawyer's Self-Defense [see also 1.6:340]

DR 4-101(C)(4) permits disclosure to establish a lawyer’s defense (1) in malpractice and fee actions between the lawyer and the client; (2) to a criminal charge or civil claim brought by third parties against the lawyer, based upon conduct in which the client was involved; or (3) in responding to “allegations” concerning the lawyer’s representation to the client.

In any of these cases, attorneys may only disclose client confidences or secrets to the extent reasonably necessary to establish the lawyer’s defense. See OEC 503(4)(c) (no privilege exists “[a]s to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer”); see also In re Robeson, 293 Or 610, 624-26, 652 P2d 336 (1982) (attorney may reveal client confidences or secrets when accused of ethical misconduct by someone other than client and client does not consent to disclosure of confidential information); OSB Legal Ethics Op No 1994-136 (in-house attorney may disclose confidences or secrets of business client in civil action for wrongful termination, but only information that is reasonably necessary to establish that claim asserted may be disclosed and any disclosure must be made in least-public manner).

In the course of a disciplinary proceeding before the OSB, if an attorney declines, on the ground of attorney-client privilege, to respond to allegations regarding that lawyer’s representation of a client the lawyer is still subject to discipline if the failure to respond means those charges go unrefuted. See In re Robeson, 293 Or at 624-31.

1.6:340      Disclosure in Fee Dispute [see also 1.6:330]

Under DR 4-101(C)(4), a lawyer may disclose client confidences and secrets to the extent necessary to establish a claim or defense in fee disputes with clients. See, e.g., OSB Legal Ethics Op No 1991-104 (attorney permitted to reveal client confidences and secrets in order to defend against client’s refusal to pay attorney’s bill on grounds that attorney had malpracticed). But see In re Huffman, 328 Or 567, 983 P2d 534 (1999) (attorney’s revelation of prior client’s secrets in attempt to deter client from challenging attorney’s fee judgment against client was unethical; fact that disclosure was made to client’s subsequent counsel was not defense).

1.6:350      Disclosure to Prevent a Crime

An Oregon attorney is permitted, but not required, to voluntarily reveal the client’s intention to commit a crime and the information necessary to prevent the commission of that crime. DR 4-101(C)(3); OEC 503(4)(a) (no privilege exists “[i]f the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud”); see also State v. Phelps, 24 Or App 329, 336 n 4, 545 P2d 901 (1976) (“[T]he future crime or fraud exception must apply only when the attorney-client communication concerns a knowingly unlawful end.” (emphasis in original)).

By contrast, when the attorney learns through privileged communications that the client has committed a crime in the past, even the recent past, the attorney must not reveal that information.

Pursuant to DR 7-102(B)(1), an Oregon attorney who learns from client confidences that the client is committing perjury in a trial that the attorney is handling must call on the client to correct the perjury. If the client refuses to do so, the attorney’s only ethical course is to seek leave to withdraw. The attorney cannot ethically disclose the perjury and must in effect say to the court only that, under disciplinary rules, the attorney cannot continue with the case. In re A., 276 Or 225, 554 P2d 479 (1976); OSB Legal Ethics Op No 1991-34.

Pursuant to DR 7-102(B)(1), an Oregon attorney who learns from client confidences that the client is committing perjury in a trial that the attorney is handling must call on the client to correct the perjury. If the client refuses to do so, the attorney’s only ethical course is to seek leave to withdraw. The attorney cannot ethically disclose the perjury and must in effect say to the court only that, under disciplinary rules, the attorney cannot continue with the case. In re A., 276 Or 225, 554 P2d 479 (1976); OSB Legal Ethics Op No 1991-34.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury [see also 1.6:350]

An attorney in Oregon may 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).

1.6:370      Disclosure to Prevent Financial Loss

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

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

1.6:390      Confidentiality and Conflict of Interest

(A) Information-Specific Former-Client Conflict

An attorney’s duty to avoid information-specific former-client conflicts under DR 5-105(C)(2) is coextensive with the attorney’s duty to protect a client’s confidences and secrets under DR 4-101 and ORS 9.460(3). OSB Legal Ethics Op Nos 1991-120, 1991-17.

Situations that give rise to information-specific conflicts include (1) prosecution of a former client on any charge by an attorney who learned confidences or secrets that could be used adversely to the client at a sentencing or hearing, OSB Legal Ethics Op No 1991-120; (2) representation of a creditor in attempting to collect a debt for a former client for whom the attorney had drawn up a will, if the prior representation provided the attorney with confidential or secret information concerning the whereabouts of the former client’s assets and the ability of the former client to pay is or reasonably may be in doubt, OSB Legal Ethics Op No 1991-17; and (3) preliminary discussions containing client confidences and secrets held with an eye toward establishing an attorney-client relationship, if the attorney later endeavors to represent the other side of a dispute. An attorney cannot defend against an allegation that an information-specific former-client conflict exists by asserting that the attorney does not actually intend to use the former client’s confidences or secrets adversely to the former client if, in fact, the confidences or secrets are susceptible to adverse use. See DR 5-105(C)(2).

When a former-client conflict is involved, DR 5-105(D) expressly permits a waiver of the conflict based on full disclosure to and consent of both the current and former clients. If an information-specific former-client conflict is involved, the attorney should make sure that the disclosure and consent letter sent to the former client specifically references the confidences or secrets at risk of being used adversely to the former client. Otherwise, the disclosure and consent may well be held to be insufficient. See, e.g., In re Corrugated Container Antitrust Litigation, 659 F2d 1341, 1348 (5th Cir 1981). Further, the attorney making disclosure and seeking consent must recommend that the client seek independent legal advice before consenting and must confirm the consent in writing.

(B) Mediation

(1) Generally

The mediating attorney is best advised to obtain at the outset the parties’ written agreement to keep their mediation discussions confidential. Similarly, an agreement should be established before beginning any caucus session during mediation, so that party expectations as to the information’s confidentiality and mediator integrity are not compromised. Otherwise, a mediator might argue a nonstatutory basis for confidentiality, e.g., contractual confidentiality or common-law mediator’s privilege under OEC 514.

With private parties, mediation communications are automatically confidential unless the parties agree otherwise. However, mediation agreements are not confidential unless the parties agree otherwise.

With public bodies, mediation communications are not confidential unless the public body first goes through a rulemaking process to make the communications confidential. Mediation agreements are generally not confidential except as provided in the Public Records Law, ORS ch 192.

(2) Exceptions

Any mediation communication relating to child abuse or elder abuse is not confidential to the extent that the person to whom the communication is made is statutorily required to report the communication.

A mediation communication is not confidential if the mediator or a party to the mediation reasonably believes that disclosing the communication is necessary to prevent a party from committing a crime that is likely to result in death or substantial bodily injury to a specific person.

A party may disclose confidential mediation communications to another person for the purpose of obtaining advice concerning the subject matter of the mediation if all parties to the mediation so agree.

In any proceeding to enforce, modify, or set aside a mediation agreement, confidential mediation communications and confidential mediation agreements may be disclosed to the extent necessary to prosecute or defend the matter.

In an action for damages or other relief between a party to a mediation and a mediator or mediation program, confidential mediation communications or confidential mediation agreements may be disclosed to the extent necessary to prosecute or defend the matter.

1.6:395      Relationship with Other Rules

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

1.6:400   Attorney-Client Privilege

Primary OR References: OEC 503
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:301, ALI-LGL §§ 68-78, Wolfram §§ 6.3-6.5
OR Commentary: EOL §§ 7.3, 7.7, 16.37

1.6:410      Privileged Communications [see also 1.6:210(A)]

The attorney-client privilege clearly applies to land-line telephone conversations. See, e.g., State v. Miller, 300 Or 203, 214-15, 709 P2d 225 (1985) (psychotherapist-patient privilege applied to telephone conversation). This approach, and the reasonableness of an expectation of confidentiality and privacy for land-line calls, is a result of the strong statutory prohibitions against the interception or unauthorized use of such telephone calls contained in the Electronic Communications Privacy Act of 1986, 18 USCA § 2510, et seq. (2000). The same basic analysis follows for cellular and cordless telephone conversations.

The critical statutory prohibitions and limitations that should protect telephone conversations apply equally to Internet communications. Although messages sent via the Internet are subject to lawful review by persons operating the host or interim computers as part of ordinary monitoring and maintenance of the system, the same type of monitoring is also permitted for traditional telephone calls, with no loss of privilege. 18 USCA § 2701(c) (2000). There is thus no reasonable argument against privilege unless the presence of an eavesdropper is known or expected.

1.6:420      Privileged Persons

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

1.6:430      Communications "Made in Confidence"

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

1.6:440      Communications from Lawyer to Client

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

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

Under DR 4-101(C)(5), a seller of a law practice may reveal to a potential purchaser of her or his law practice the identities of clients and any adverse parties, the nature and extent of the legal services involved, and fee and payment information. The prospective purchaser may not reveal the information disclosed regardless of whether the sale is consummated and regardless of whether the clients involved eventually choose to retain the purchaser as their attorney. It follows that if the sale is not completed or the purchaser is not retained to continue the representation of the client involved, the prospective purchaser could be disqualified from representing a party adverse to the client involved if the prospective purchaser would be called on to use the confidential information he or she has acquired through disclosure. See DR 4-101(B)(3).

1.6:460      Legal Assistance as Object of Communication

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

1.6:470      Privilege for Organizational Clients [see also 1.2:830]

Although an employee or other representative of a client is not an individual client per se, officers, directors, and employees clearly can be and are representatives of a client within the meaning of OEC 503(1)(d), and communications between the employer’s counsel and any officer, director, or employee of the client can be subject to a claim of attorney-client privilege by the employer. See, e.g., State ex rel OHSU v. Haas, 325 Or 492, 942 P2d 261 (1997) (construing OEC 503(1)(d)(B) regarding “representative of the client” such that attorney’s report presented by corporate employee to other corporate employees was not waiver of attorney-client privilege). This does not mean, however, that all officers, directors, and employees of clients are represented persons within the meaning of DR 7-104(A)(1) and therefore are “off-limits” to contact by opposing counsel. See OSB Legal Ethics Op No 1991-80. Similarly, although former directors, officers, or employees should not be held off-limits to opposing counsel as “represented” parties, the employer’s attorney’s conversations with those persons about matters that relate to their work on the employer’s behalf are privileged.

1.6:475      Privilege for Governmental Clients

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

1.6:480      Privilege of Co-Clients

Although attorney communications with multiple clients are and generally remain privileged as against the rest of the world, it is generally held that multiple clients have no privilege claim against each other in the event of a subsequent dispute. See, e.g., OEC 503(4)(e); Minard v. Stillman, 31 Or 164, 167-68, 49 P 976 (1897).

There are some circumstances in which one of two parties to a joint defense can waive the privilege in support of an “advice-of-counsel” defense but in which the language of OEC 503(4)(e) would not appear to permit unilateral waiver.

When several clients consult one or more attorneys for the prosecution or defense of a matter that is in litigation or about to be in litigation, the Conference Committee Commentary to OEC 503(2) provides:

“In a case in which lawyers represent different clients who have a common interest, Rule 503 allows each client a privilege as to the client’s own statements. Thus, in ‘joint defense’ or ‘pooled information’ situations, if all clients resist disclosure, none will occur. However, if for some reason one client wishes to disclose the client’s own statements made at a joint conference, the person is permitted to do so. No privilege applies where there is no common interest to be promoted by a joint consultation, and the parties, therefore, meet on a purely adversary basis.”

Conference Committee Commentary to OEC 503(4)(e) provides:

“Communications for the mutual information of joint clients are not confidential, and hence not privileged in a subsequent dispute between the clients. The situation with which this provision deals is to be distinguished from the case of clients under a common interest who retain different lawyers[.]” (Citations omitted.)

When several parties jointly consult a single attorney with respect to a nonlitigation or business matter, there appears to be no Oregon case on point. In light of the wording of OEC 503, it is possible to argue that Oregon would not allow one of several joint clients in a nonlitigation setting to waive the privilege for all.

1.6:490      Common-Interest Arrangements

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

1.6:495      Duration of Attorney-Client Privilege

The duty to preserve client confidences and secrets is perpetual. It continues when the attorney no longer works for the client and after the attorney retires. OSB Legal Ethics Op No 1991-23. It continues after an attorney changes firms. OSB Legal Ethics Op No 1991-120. The duty prevents former counsel from sharing confidential information with subsequent counsel unless the client consents. OSB Legal Ethics Op No 1991-23. On the other hand, an attorney may discuss a client’s affairs with others in the same firm unless the client directs otherwise. See EC 4-2.

When an individual client dies, OEC 503(3) provides that the privilege is held by the personal representative. See also OSB Legal Ethics Op Nos 1991-119, 1991-62. Similarly, the privilege may be claimed under OEC 503(3) by a guardian or conservator of an individual or by a successor, trustee, or similar representative of a corporation, association, or other organization.

Still, it is ethical for a lawyer to contract with a recycling service for disposal of documents when reasonable care is taken to ensure that documents are disposed of without review by recycling employees or others. OSB Legal Ethics Op No 1991-141.

1.6:500   Waiver of Attorney-Client Privilege

Primary OR References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:401, ALI-LGL §§ 78-80, Wolfram § 6.4
OR Commentary: EOL § 7.6

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

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

1.6:520      Waiver by Subsequent Disclosure

When a lawyer voluntarily and not inadvertently produces a document, the court may draw the inference that the privilege has been waived. Goldsborough v. Eagle Crest Partners, Ltd., 314 Or 336, 838 P2d 1069 (1992). Whether the production was inadvertent is determined by assessing factors such as the degree of effort made by a party and its counsel to avoid inadvertent production in the first place and the degree of diligence thereafter used by a party in seeking to retrieve inadvertently produced documents.

Oregon law has not resolved the question of whether selective waiver of the privilege as to one party by showing documents to the government waives the privilege with regard to those documents as to all other parties. Note, however, that showing documents to an ally in litigation may waive the attorney-client privilege but not the work-product doctrine.

1.6:530      Waiver by Putting Assistance or Communication in Issue

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

1.6:600   Exceptions to Attorney-Client Privilege

Primary OR References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 81-86, Wolfram §§ 6.4
OR Commentary:

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

The duty to preserve client confidences and secrets is perpetual. When an individual client dies, OEC 503(3) provides that the privilege is held by the decedent’s personal representative. See also OSB Legal Ethics Op Nos 1991-119, 1991-62.

1.6:620      Exception for Client Crime or Fraud

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

1.6:630      Exception for Lawyer Self-Protection

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

1.6:640      Exception for Fiduciary-Lawyer Communications

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

1.6:650      Exception for Organizational Fiduciaries

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

1.6:660      Invoking the Privilege and Its Exceptions

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

1.6:700   Lawyer Work-Product Immunity

Primary OR References:
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 87-93, Wolfram § 6.6
OR Commentary:

1.6:710      Work-Product Immunity

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

1.6:720      Ordinary Work Product

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

1.6:730      Opinion Work Product

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

1.6:740      Invoking Work-Product Immunity and Its Exceptions

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

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

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

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

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

1.6:770      Exception for Crime or Fraud

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