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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of Oregon Rule

• Primary OR References: DR 5-109(A)
• Background References: ABA Model Rule 1.12, Other Jurisdictions
• Commentary:
• OR Commentary: EOL § 14

1.12:101      Model Rule Comparison

DR 5-109(A) is substantively similar to MR 1.12(a), except that the latter is broader in scope and states more specifically the persons to whom it applies. The DRs do not have counterparts to MR 1.12(b) through (d).

1.12:102      Model Code Comparison

DR 5-109(A) is similar to MC DR 9-101(A).

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

• Primary OR References: DR 5-109(A)
• Background References: ABA Model Rule 1.12(a), Other Jurisdictions
• Commentary: ABA/BNA § 91.4501
• OR Commentary:

DR 5-109(A) provides that a “lawyer shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after full disclosure.” Such disclosure must be made to, and consent must be obtained from, all parties to the proceeding.

As with the standard articulated in DR 5-109(B) for former government employees, a judge’s personal and substantial participation is comparable to that which would constitute a former-client matter-specific conflict, as those terms are used in DR 5-105(C)(1). A judge or clerk must have been “‘personally involved [in a matter] to an important, material degree,’” as opposed to the signing of a routine order or the mere reviewing of the status of the case, in order to be disqualified from subsequent representation. OSB Legal Ethics Op No 1991-120 (quoting ABA Formal Ethics Op 342 (1975)).

1.12:300   Negotiating for Future Employment

• Primary OR References:
• Background References: ABA Model Rule 1.12(b), Other Jurisdictions
• Commentary: ABA/BNA § 91:4001, ALI-LGL § 125, Wolfram § 8.10
• OR Commentary:

Like the ABA Model Code, the DRs do not include a counterpart to MR 1.12(b).

1.12:400   Screening to Prevent Imputed Disqualification

• Primary OR References:
• Background References: ABA Model Rule 1.12(c), Other Jurisdictions
• Commentary: ABA/BNA § 91:4501, ALI-LGL §§ 123, 124, Wolfram § 7.6.4
• OR Commentary:

Like the ABA Model Code, the DRs do not include a counterpart to MR 1.12(c). Nevertheless, OSB Legal Ethics Op No 1991-120 provides that if a former judge is unable to obtain consent from all parties after full disclosure, the firm to which that former judge belongs may still represent its client, provided the former judge is screened pursuant to DR 5-105(I).

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

• Primary OR References:
• Background References: ABA Model Rule 1.12(d), Other Jurisdictions
• Commentary: ABA/BNA § 51:1501
• OR Commentary:

Like the ABA Model Code, the DRs do not include a counterpart to MR 1.12(d).