Oregon Legal Ethics

II. COUNSELOR

2.1 Rule 2.1 Advisor

2.1:100 Comparative Analysis of Oregon Rule

• Primary OR References: DR 5-101, 5-102, 5-103, 5-104, 5-105, 5-108, 5-110, 6-101, 7-101
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary:
• OR Commentary: EOL §§ 8.1-.3

2.1:101 Model Rule Comparison

The DRs do not contain a direct counterpart to MR 2.1. DR 5-108(B) requires lawyers to act with independence.

2.1:102 Model Code Comparison

The DRs track the ABA Model Code language in this respect.

2.1:200 Exercise of Independent Judgment

• Primary OR References: DR 6-101, 7-101, 7-102
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary:
• OR Commentary: EOL § 22.13

In Oregon the obligation to exercise independent judgment arises in part from the prohibitions against conflicts of interest and the lawyer’s duty of loyalty to the client. See DR 5-101, 5-102, 5-103, 5-104, 5-105, 5-108, 5-110, 7-101. DR 5-108(B) explicitly provides:

“A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”

Candid Advice

Candid advice implicates the duty of competence set forth in DR 6-101. Candid advice means that a lawyer should fully counsel a client about the implications of an intended course of action. See, e.g., OSB Legal Ethics Op No 1991-92 (attorney may advise client who proposes to breach contract, so long as deal is not fraudulent or illegal; lawyer should apprise client of civil consequences).

2.1:300 Non-Legal Factors in Giving Advice

• Primary OR References: DR 6-101, 7-101, 7-102
• Background References: ABA Model Rule 2.1, Other Jurisdictions
• Commentary: ABA/BNA § 31:701, ALI-LGL § 94, Wolfram § 4.3
• OR Commentary: EOL § 22.13

As is true in other jurisdictions, and notwithstanding the general duty of zealous representation, the OSB recognizes that in advising a client regarding a proposed transaction, a lawyer may highlight factors that “may lead to a decision that is morally just as well as legally permissible.” EC 7-8.

2.2 Rule 2.2 Intermediary

2.2:100 Comparative Analysis of Oregon Rule

• Primary OR References: DR 5-101, 5-105, 5-106
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary:
• OR Commentary: EOL ch 13

2.2:101 Model Rule Comparison

The DRs do not contain a direct counterpart to MR 2.2. To the contrary, DR 5-105(E) provides that “[e]xcept as provided in DR 5-105(F), a lawyer shall not represent multiple current clients in any matters when such representation would result in an actual or likely conflict.” DR 5-105(A) defines both actual and likely conflicts. In Oregon the term “actual conflict” has a specific definition different from the definition in other states. See Sanders v. Ratelle, 21 F3d 1446 (9th Cir 1994). DR 5-105(F) provides that “[a] lawyer may represent multiple current clients in instances otherwise prohibited by DR 5-105(E) when such representation would not result in an actual conflict and when each client consents to the multiple representation after full disclosure.” (DR 10-101(B) defines “full disclosure.”) See also Peter R. Jarvis & Bradley F. Tellam, “When Waiver Should Not Be Good Enough: An Analysis of Current Client Conflicts Law,” 33 Willamette L Rev 145 (1997).

Under DR 5-106, however, a lawyer may act as a “mediator” for multiple parties, if the lawyer clearly discloses the lawyer’s role and receives the parties’ consent. See OSB Legal Ethics Op No 1991-101 (lawyer-mediators who comply with DR 5-106 do not represent any party to mediation and are not subject to DR 5-105).

The Oregon Mediation Association has developed comprehensive Standards of Practice (OMA Standards) for all of its mediator members. The OMA Standards are important for all mediators in Oregon because they are likely to be considered the community standard of reasonable performance. These standards have been incorporated into the required qualifications for court panel mediators. See OAR 718-040-0100. Thus, an unethical mediator may face discipline from the Oregon Mediation Association and removal from court referral mediator lists in addition to whatever other remedies the parties may have for damages against the mediator.

2.2:102 Model Code Comparison

The ABA Model Code contains no rule on intermediaries.

2.2:200 Relationship of Intermediation to Joint Representation

• Primary OR References: DR 5-106
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram §§ 8.7, 13.6
• OR Commentary: EOL §§ 13.1-.2

DR 5-106 permits a lawyer to serve as a mediator for multiple parties, if the lawyer clearly notifies the parties of the lawyer’s role and the parties’ consent. See OSB Legal Ethics Op No 1991-101 (DR 5-105 does not apply to lawyer-mediator who complies with DR 5-106, because lawyer does not represent all parties).

2.2:300 Preconditions to Becoming an Intermediary

• Primary OR References: DR 5-106
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6
• OR Commentary: EOL §§ 13.3B, 13.7

Mediators in Oregon must satisfy statutory and regulatory qualifications before serving as a mediator. See ORS 36.180-.210; OAR 718-040-0100 (incorporating OMA Standards). Under DR 5-106, lawyer-mediators must obtain informed consent before acting as a mediator for multiple parties.

2.2:400 Communication During Intermediation

A mediator must conduct the mediation impartially. While the mediation may meet with parties in caucus, the mediator must remain impartial and must also make agreements to maintain confidentiality.

2.2:500 Consequences of a Failed Intermediation

• Primary OR References:
• Background References: ABA Model Rule 2.2, Other Jurisdictions
• Commentary: ABA/BNA § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6
• OR Commentary:

2.3 Rule 2.3 Evaluation for Use by Third Persons

2.3:100 Comparative Analysis of Oregon Rule

• Primary OR References: DR 7-101(D)
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary:

2.3:101 Model Rule Comparison

DR 7-101(D) is substantially similar to MR 2.3.

2.3:102 Model Code Comparison

The ABA Model Code contains no rule comparable to DR 7-101(D).

2.3:200 Undertaking an Evaluation for a Client

• Primary OR References: DR 7-101(D)
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4
• OR Commentary: EOL

Pursuant to DR 7-101(D), an Oregon lawyer may undertake an evaluation of a matter affecting a client for use by a nonclient if the lawyer reasonably believes that making the evaluation is compatible with the lawyer’s relationship with the client and if the client consents after full disclosure. DR 7-101(D). The intent of DR 7-101(D) is not to effect a broader privilege waiver than is required by the lawyer’s report or evaluation. Id.

2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

• Primary OR References: DR 7-101(D)
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.4
• OR Commentary: EOL §§ 19.3, 22.6, et seq.

Oregon case law reflects some breaches in the general privity requirement for civil liability to nonclients for malpractice. Oregon lawyers also have potential disciplinary liability for misrepresentations to third parties as well as potential fraud liability to such parties.

2.3:400 Confidentiality of an Evaluation

• Primary OR References: DR 7-101(D)
• Background References: ABA Model Rule 2.3, Other Jurisdictions
• Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.3
• OR Commentary: EOL

DR 7-101(D) provides that “[e]xcept as disclosure is required in connection with a report of an evaluation, information relating to the evaluation [for a third party] is otherwise protected by DR 4-101 [governing client confidences and secrets].”

2.4 Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100 Comparative Analysis of Oregon Rule

• Primary OR References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:

MR 2.4 was added in February 2002. The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101 Model Rule Comparison

Oregon has not adopted the new model rule.

2.4:200 Definition of "Third-Party Neutral"

• Primary OR References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:
• OR Commentary:

Oregon has not adopted the new model rule.

2.4:300 Duty to Inform Parties of Nature of Lawyer's Role

• Primary OR References:
• Background References: ABA Model Rule 2.4, Other Jurisdictions
• Commentary:
• OR Commentary:

Oregon has not adopted the new model rule.