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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-102(A), ORCP 17, ORS 9.460
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.1-.55

3.1:101      Model Rule Comparison

In Oregon, the DRs do not contain a direct counterpart to MR 3.1. DR 7-102(A)(1), however, is to the same general effect. Under DR 7-102(A)(1), the test for improper conduct is whether the action “would serve merely to harass or maliciously injure another,” which contrasts with the measure under MR 3.1 that the action is not frivolous. Only intentional conduct violates DR 7-102(A)(1).

3.1:102      Model Code Comparison

DR 7 generally tracks the language of the ABA Model Code.

3.1:200   Non-Meritorious Assertions in Litigation

Primary OR References: DR 7-102(A), ORCP 17, ORS 9.460
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 110, Wolfram § 11.2
OR Commentary: EOL §§ 10.1-.55

A case does not become automatically frivolous because of the existence of valid affirmative defenses. OSB Legal Ethics Op No 1991-21 (lawyer may file claim even though lawyer knows that valid affirmative defense exists if burden of raising defense is on defense); see also OSB Legal Ethics Op No 1991-59 (outlining circumstances of reasonable investigation and frivolous litigation).

In the context of an appeal, the Oregon Supreme Court has held that an appeal is without merit and subjects an attorney to sanctions if “every argument on appeal is one that a reasonable lawyer would know is not . . . warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.” Westfall v. Rust International, 314 Or 553, 559, 840 P2d 700 (1992); see Seely v. Hanson, 317 Or 476, 483, 857 P2d 121 (1993); Toney v. Armenakis, 139 Or App 464, 912 P2d 911 (sanctions imposed for meritless appeal), rev den 323 Or 691 (1996).

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary OR References: DR 7-102(A), ORCP 17, ORS 9.460
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 110, Wolfram § 11.2
OR Commentary: EOL §§ 10.1-.55

When a lawyer filed a second complaint identical to the first complaint and the court concluded that the only reason for filing the second complaint was to avoid the judge’s ruling in the first case, the Oregon Court of Appeals held that the trial court properly imposed sanctions under ORCP 17. Plere Publishers, Inc. v. Capital Cities/ABC, Inc., 120 Or App 36, 852 P2d 261, rev den 317 Or 583 (1993).

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary OR References: DR 7-102(A), ORCP 17, ORS 9.460
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 56, 110, Wolfram § 11.2
OR Commentary: EOL §§ 10.1-.55

The Oregon Supreme Court has declined to create a new private cause of action for recovery of damages other than “special injury” resulting from malicious attorney conduct in the course of misleading a court or jury. Bob Godfrey Pontiac v. Roloff, 291 Or 318, 630 P2d 840 (1981).

3.1:500   Complying with Law and Tribunal Rulings

Primary OR References: DR 7-106, ORS 9.527(3)
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 105, Wolfram §§ 12.1.3, 13.3.7
OR Commentary: EOL § 10.48

DR 7-106(A) and ORS 9.527(3) require an attorney and the attorney’s client to respect the court and the court’s rulings. A lawyer violated both DR 7-106(A) and ORS 9.527(3) by claiming to own real property after entry of a judgment finding that the lawyer had no interest in the property and specifically enjoining the lawyer from making future claims of ownership. In re Weidner, 320 Or 336, 883 P2d 1293 (1994); see In re Starr, 9 DB Rptr 1 (1995) (lawyer’s failure to answer questions following court’s order requiring her to do so and refusal to participate in scheduled court conference violated both DR 7-106(A) and ORS 9.527(3)); In re Tamblyn, 298 Or 620, 695 P2d 902 (1985) (lawyer did not violate DR 7-106(A) by instructing client to disregard order granting preliminary injunction when order was void as matter of law).

DR 7-106(C)(5) requires compliance with local customs of courtesy or practice absent notice to opposing counsel of an intent not to comply. See In re Porter, 320 Or 692, 706, 890 P2d 1377 (1995) (custom is specific course of action “so general and uniform” that it has attained status of unwritten law governing lawyers in particular region; lawyer need not have actual notice of custom to violate DR 7-106(C)(5)).

DR 7-106(C)(6) prohibits undignified conduct that is degrading to a tribunal. Nevertheless, a lawyer has a duty to preserve a client’s rights by objecting, appropriately, to remarks by the court that in the lawyer’s opinion reasonably tend to prejudice the client’s case to the jury. See State of Oregon v. Yates, 208 Or 491, 501, 302 P2d 719 (1956) (objection to court’s irascible tone toward witness did not constitute ethical violation).

DR 8-102(B) prohibits a lawyer from knowingly making false accusations against a judge. Nevertheless, a lawyer may state opinions about a judge’s competence, even though the lawyer has not appeared before the judge, as long as the lawyer does not knowingly make false statements of fact. OSB Legal Ethics Op No 1991-64; see OSB Legal Ethics Op No 1991-38 (lawyer may campaign on behalf of judicial candidates as long as lawyer does not make knowing false statements of fact).

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-101(A)(1), 7-102(A)(1)
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 9.8, 10.1

3.2:101      Model Rule Comparison

The DRs do not contain a direct counterpart to MR 3.2. However, DR 7-101(A)(1) provides that a lawyer does not act unethically “by acceding to reasonable requests of opposing counsel which do not prejudice the rights of the lawyer’s client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.” DR 7-102(A)(1) prohibits a lawyer from filing a suit, asserting a position, conducting a defense, or delaying a trial “when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.” See also ORCP 17 C(2) (a lawyer who signs a pleading, motion, or other paper “certifies that the pleading, motion or other paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation”).

3.2:102      Model Code Comparison

DR 7 generally tracks the language of the ABA Model Code.

3.2:200   Dilatory Tactics

Primary OR References: DR 7-101(A)(1), 7-102(A)(1), ORCP 17
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 106, Wolfram § 11.2.5
OR Commentary: EOL §§ 8.10, 10.25

DR 7-101(A)(1) primarily addresses dilatory tactics to the extent that the delay rises to the level of a lawyer’s failure to seek a client’s lawful objectives or the failure to carry out a contract of employment or causes prejudice or damage to a client. In re Kersh, 9 DB Rptr 181 (1995) (lawyer violated DR 7-101(A) by delaying submission of client documents to court administrator); see In re Loew, 292 Or 806, 642 P2d 1171 (1982) (failure to file brief or to seek extension caused dismissal of client’s appeal and violated DR 7-101(A)(1)); see also In re Thies, 305 Or 104, 750 P2d 490 (1988) (violations of DR 7-101(A) and 7-102(A)(1)).

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary OR References: DR 7-101(A), 7-102(A), ORCP 17
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 106, Wolfram § 11.2.5
OR Commentary: EOL § 10.25

Under ORCP 17 D, a court may impose sanctions against a lawyer, who by his or her signature on a pleading, motion, or other paper presented to the court, falsely certifies that the pleading, motion, or other paper is not presented to cause unnecessary delay.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-101(A), 7-106(B)(1), ORS 9.460(2)
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.1-.55

3.3:101      Model Rule Comparison

DR 7-102(A)(5) is almost identical to MR 3.3(a)(1). See Annotated ABA Model Rules of Professional Conduct 3.3 (3d ed 1996). DR 7-102(A)(3) implies the duty stated by MR 3.3(a)(2). Annotated ABA Model Rules of Professional Conduct 3.3. DR 7-106(B)(1) is analogous to MR 3.3(a)(3). Annotated Rules of Professional Conduct 3.3. DR 7-102(A)(4) parallels the duty stated by MR 3.3(a)(4), but the second sentence of MR 3.3(a)(4) expressly asserts that a lawyer must take reasonable remedial measures upon discovering that false evidence has been presented. Annotated ABA Model Rules of Professional Conduct 3.3; cf. DR 7-102(B)(1); see also DR 1-102(A)(3) (lawyer may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation). In contrast to DR 7-102(A)(4), which prohibits a lawyer from offering evidence that the lawyer knows is false, MR 3.3(c) permits a lawyer to decline to offer evidence that the lawyer “reasonably believes” is false. The DRs do not contain a section similar to MR 3.3(d). See also ORS 9.460(2).

3.3:102      Model Code Comparison

DR 7, which most closely resembles MR 3.3, follows the language of the ABA Model Code with some variation.

3.3:200   False Statements to a Tribunal

Primary OR References: DR 7-102(A), ORS 9.460(2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
OR Commentary: EOL §§ 10.1, 10.33-.35, 10.45-.47

In In re Hedrick, 312 Or 442, 822 P2d 1187 (1991), the Oregon Supreme Court held that a lawyer’s misrepresentations in a petition filed in probate court violated DR 7-102(A)(5). See also In re Bourcier, 322 Or 561, 909 P2d 1234 (1996) (false statements to court); In re Claussen, 322 Or 466, 909 P2d 862 (1996) (lawyer’s intentional failure to disclose to bankruptcy court his relationship with both debtor and creditor violated DR 7-102(A)(3) and (5)); In re Barber, 322 Or 194, 904 P2d 620 (1995) (lawyer violated DR 7-102(A)(2) and (4) when lawyer attached altered copies of contingent fee contracts to complaint against former client; lawyer also misrepresented time and expenses to support claim); In re Staar, 324 Or 283, 924 P2d 308 (1996) (false statement in restraining order petition violated DR 7-102(A) even though lawyer was not acting as attorney).

(A) Affidavits

A lawyer who submits affidavits in support of a motion may violate several ethical rules. First, the lawyer violates ORS 194.990 and 194.515(3) if the lawyer acts as notary and willfully makes a false certificate. In re Hawkins, 305 Or 319, 324, 751 P2d 780 (1988); see also OSB Legal Ethics Op No 1991-5.

If the lawyer knows that an affidavit contains a false statement of fact, the lawyer violates DR 7-102(A)(5). In re Hawkins, 305 Or at 324-25; In re Dixson, 305 Or 83, 750 P2d 157 (1988) (affidavit that falsely stated emergency grounds for early divorce decree violated what became ORS 9.460(2) and DR 1-102(A)(3) and (4)).

If a lawyer submits a misleading affidavit and the lawyer fails to disclose unfavorable facts that the lawyer had in mind and were material to the lawyer’s argument, the lawyer may violate ORS 9.460(2) and DR 1-102(A)(3). In re Hiller, 298 Or 526, 532, 694 P2d 540 (1985). As the Oregon Supreme Court said in Hiller, “[a] person must be able to trust a lawyer’s word as the lawyer should expect his word to be understood, without having to search for equivocation, hidden meanings, deliberate half-truths or camouflaged escape hatches.” Id. at 534.

ORS 9.460(2) requires a lawyer to “[e]mploy, for the purpose of maintaining the causes confided to the attorney, such means only as are consistent with truth, and never seek to mislead the court or jury by any artifice or false statement of law or fact.” If a lawyer fails to make such disclosures, the lawyer may also violate DR 1-102(A)(4). In re Greene, 290 Or 291, 620 P2d 1379 (1980); In re Haws, 310 Or 741, 801 P2d 818 (1990); In re Miller, 310 Or 731, 801 P2d 814 (1990).

(B) Attorney Affidavit Regarding Expert Testimony in Opposition to Summary Judgment

Under ORCP 47 E, a party may defeat summary judgment in state court by submitting an affidavit that states the party’s reliance on the opinion of an expert without actually disclosing the expert’s identity or opinion. ORCP 47 E provides that such an affidavit “shall be made in good faith based on admissible facts or opinions obtained from a qualified expert who has actually been retained by the attorney who is available and willing to testify and who has actually rendered an opinion or provided facts which, if revealed by affidavit, would be a sufficient basis for denying the motion for summary judgment.”

If a lawyer makes such an affidavit, and the lawyer knows that he or she lacks the basis to make the representations to the court, then the lawyer could be subject to discipline and to sanctions under ORCP 47. Cf. In re Greene, 290 Or at 297 (indicating ex parte matters require heightened duty of candor because “[j]udges must be able to rely upon the integrity of the lawyer”).

(C) Misrepresentations of State of the Law

Two DRs specifically prohibit a lawyer from misrepresenting the state of the law. DR 7-102(A)(5) provides that a lawyer shall not knowingly make a false statement of law or fact. DR 7-106(B)(1) provides: “In presenting a matter to a tribunal, a lawyer shall disclose . . . [l]egal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the lawyer’s client and which is not disclosed by opposing counsel.” See EOL § 10.36; In re Crist, 297 Or 334, 683 P2d 85 (1984) (lawyer’s misleading statements to court re case status violated DR 7-102(A)(5) and ORS 9.460(2)); In re Otto W. Heider, 217 Or 134, 155-56, 341 P2d 1107 (1959); cf. OSB Legal Ethics Op No 1991-53; In re McKee, 316 Or 114, 126, 849 P2d 509 (1993) (lawyer’s misrepresentation to court that matter had settled violated DR 7-102(A)(5)).

(D) Use of Perjured or False Evidence

DR 7-102(A)(4), (5), and (6) prohibit the use of perjured or false evidence. Each subsection requires knowing conduct. However, these rules do not require an intent to deceive. See, e.g., In re Jenson, 1 DB Rptr 107 (1986) (lawyer violated DR 7-102(A)(4), (5), and (6) by substituting impostor for defendant to facilitate misidentification by victim); see also OSB Legal Ethics Op No 1991-34 (discussion of lawyer’s duties upon discovery of client perjury in both civil and criminal context); EOL § 10.47.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary OR References: DR 7-102(B), 4-101
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120
OR Commentary: EOL §§ 10.47, 9.13-.15

(A) Generally

Under DR 7-102(B), a lawyer must take remedial action when the lawyer receives information clearly establishing client fraud on a person or tribunal, or a fraud by a person other than a client on a tribunal. OSB Legal Ethics Op Nos 1991-34 (remedial action in both civil and criminal context), 1991-53 (discussion of duty not to assist in fraudulent conduct); see In re A., 276 Or 225, 554 P2d 479 (1976) (lawyer who knew through confidential information from client that client’s testimony was false and misleading and client refused to permit lawyer to disclose information to court, lawyer could not reveal confidential information and was obligated to withdraw).

Under DR 4-101(C)(3), a lawyer who learns that a client intends to commit a crime may, but is not required to, disclose the client’s intent and the information necessary to prevent that crime. DR 7-102(A)(7) and (8) prohibit a lawyer from assisting a client in the furtherance of a crime or fraud. In addition, a lawyer who assists a client in committing a crime may also become criminally liable for the illegal conduct. See ORS 161.155 (accomplice liability).

(B) Disclosure of Past Fraud or Crime by Client

Generally, the attorney-client privilege prohibits a lawyer from disclosing “past” crimes revealed by a client to the lawyer in the course of their professional relationship. However, under DR 7-102(B)(1) a lawyer must take remedial action including disclosure when the lawyer receives information that clearly establishes client fraud in the course of the representation unless the attorney-client privilege protects the information. But see ORS 9.460(3). See also OSB Legal Ethics Op Nos 1991-119, 1991-34.

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

DR 7-102(A)(7) and (8) prohibit a lawyer from counseling or assisting a client in either illegal or fraudulent conduct. Cf. OSB Legal Ethics Op No 1991-53 (discussion of duty not to assist fraudulent conduct).

3.3:400   Disclosing Adverse Legal Authority

Primary OR References: DR 7-106(B)(1)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 111, Wolfram § 12.8
OR Commentary: EOL § 10.36

DR 7-106(B)(1) requires a lawyer to disclose legal authority within the controlling jurisdictions which is not disclosed by opposing counsel and is known by the lawyer to be directly adverse to the position taken by the lawyer’s client. See also DR 7-102(A)(5).

3.3:500   Offering False Evidence

Primary OR References: DR 7-102(A), 1-102(A)(3), 7-104(A), 7-109, ORS 162.285
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 115-120, Wolfram §§ 12.3, 12.43, 12.5
OR Commentary: EOL §§ 6.9-.12, 10.4-.6, 10.46-.47, 10.49

DR 7-102(A)(4), (5), and (6) prohibit the use of false evidence. Each subsection requires knowing conduct. However, these rules do not require an intent to deceive. See, e.g., In re Jenson, 1 DB Rptr 107 (1986) (lawyer who substituted impostor for defendant to facilitate misidentification by victim violated DR 7-102(A)(4), (5), and (6)); see also OSB Legal Ethics Op No 1991-34.

3.3:510      False Evidence in Civil Proceedings

See In re Barber, 322 Or 194, 904 P2d 620 (1995) (lawyer who knowingly attached altered fee agreements to complaint by lawyer against former client violated DR 7-102(A)(4) and (6), which prohibit use of false evidence); In re Hawkins, 305 Or 319, 751 P2d 780 (1988) (use of false affidavit to obtain court order appointing client as guardian).

3.3:520      False Evidence in Criminal Proceedings

In re Jenson, 1 DB Rptr 107 (1986). During criminal trial, a lawyer seeking misidentification by the victim at trial substituted a third person in place of his client. The third person signed a jury waiver and proceeded to trial. Misidentification by the victim occurred. The lawyer was found to have violated the DRs by using perjured testimony and false evidence and participating in the creation of false evidence, among other violations.

3.3:530      Offering a Witness an Improper Inducement

DR 7-109(C) prohibits compensation to witnesses contingent upon content of testimony or the outcome of the case. However, lawyers may compensate witnesses for reasonable expenses, including loss of time, in attending or testifying, and lawyers may pay a reasonable fee to expert witnesses. See, e.g., In re Martin, 308 Or 125, 775 P2d 842 (1989) (lawyer disbarred following conviction for bribery).

3.3:540      Interviewing and Preparing Witnesses

During witness interviews, a lawyer may not act deceptively. See DR 7-102(A)(5) (lawyer shall not knowingly make false statement of fact); DR 1-102(A)(3) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation). A lawyer who misrepresents his or her identity to a witness risks discipline under DR 7-102(A)(5) and 1-102(A)(3). Cf. OSB Legal Ethics Op No 1991-42; In re Gatti, Or S Ct No S45801 (2000) (DR 1-102(A)(3) and 7-102(A)(5) and ORS 9.527(4) apply to all lawyers in Oregon; there is no investigatory exception for government lawyers); In re Chambers, 292 Or 670, 680-81, 642 P2d 286 (1982) (lawyer violated DR 7-102(A)(5) by misrepresenting to adverse party that he was an insurance investigator rather than an attorney).

(A) Generally

During witness interviews, a lawyer may not act deceptively. See DR 7-102(A)(5) (lawyer shall not knowingly make false statement of fact); DR 1-102(A)(3) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation). A lawyer who misrepresents his or her identity to a witness risks discipline under DR 7-102(A)(5) and 1-102(A)(3). Cf. OSB Legal Ethics Op No 1991-42; In re Gatti, Or S Ct No S45801 (2000) (DR 1-102(A)(3) and 7-102(A)(5) and ORS 9.527(4) apply to all lawyers in Oregon; there is no investigatory exception for government lawyers); In re Chambers, 292 Or 670, 680-81, 642 P2d 286 (1982) (lawyer violated DR 7-102(A)(5) by misrepresenting to adverse party that he was insurance investigator rather than an attorney); see also OSB Legal Ethics Op No 1991-118. But cf. DR 1-102(D) (noting limited role that lawyers may play in covert evidence gathering by others).

Under the Crime Victim’s Bill of Rights, ORS 135.970(2), if a victim is contacted by the criminal defendant’s defense team, “the victim must be clearly informed by the defendant’s attorney, either in person or in writing, of the identity and capacity of the person contacting the victim, that the victim does not have to talk to the defendant’s attorney, or other agents of the defendant, . . . unless the victim wishes, and that the victim may have a district attorney present during any interview.”

“It is not necessary for the lawyer or the lawyer’s investigator, in interviewing a prospective witness, to caution the witness concerning possible self-incrimination and the need for counsel.” ABA Standards Relating to the Administration of Criminal Justice 4-4.3(b); cf. DR 7-104(A)(2) (lawyer shall not give advice to unrepresented person, other than advice to secure counsel, if interests of client and witness have reasonable possibility of being adverse).

Commentators have also criticized the use of false subpoenas. ABA Standards Relating to the Administration of Criminal Justice 3-3.1(d); cf. Vaughan v. Taylor, 79 Or App 359, 363, 718 P2d 1387 (subpoena issued without notice of deposition subject to motion to quash), rev den 301 Or 445 (1986).

Tape recording a witness interview without notice and consent is improper if such recording is not lawful. OSB Legal Ethics Op No 1999-156 (an attorney’s unlawful recording a telephone or in-person conversation violates both DR 7-102(A)(8) and DR 1-102(A)(2)). However, even if a recording without notice and consent is lawful, a recording made if the witness was misled into believing that the conversation would not be recorded would be improper under DR 1-102(A)(3). Id.

In addition, interview or investigation techniques that “serve merely to harass or maliciously injure another” may violate DR 7-102(A)(1). See EC 7-10 (obligation to treat all persons with fairness and to avoid infliction of needless harm).

“[A] lawyer should not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.” EC 7-27; see also DR 7-109(A), (B); State v. Ben, 310 Or 309, 798 P2d 650 (1990) (defense lawyer violated criminal discovery statute by instructing nonparty witness not to talk to prosecutor outside presence of defense attorney). But see State v. York, 291 Or 535, 541, 632 P2d 1261 (1981) (affirming conviction despite claim of prosecutorial misconduct in advising prospective witnesses that “it would be better if [we] didn’t say anything” to the defense).

In criminal cases “[n]either the prosecutor nor the defense should restrict access to witnesses.” ABA Standards Relating to the Administration of Criminal Justice 3-3.1(d), 4-4.3(c). In a civil case, a lawyer may not blockade witnesses. Subject to the limitations imposed by DR 7-104, and absent an objection by the witness, any party may interview a witness in private outside the presence of opposing counsel. International Business Machines Corp. v. Edelstein, 526 F2d 37 (2d Cir 1975).

DR 7-109(C) and ORS 162.285 prohibit lawyers from encouraging witnesses to testify falsely.

(B) Contact with Parties Represented by Counsel [see also 4.2:100, et seq.]

DR 7-104 prohibits certain communications with persons represented by counsel. However, a lawyer may ethically interview certain nonparty fact witness and expert witnesses in state court litigation outside the presence of opposing counsel. OSB Legal Ethics Op No 1992-132. The lawyer may not attempt to dissuade either from testifying.

In In re Smith, 316 Or 55, 59-61, 848 P2d 612 (1993), a lawyer in a worker’s compensation case threatened to sue the examining physician if the physician failed to issue a favorable opinion. The baseless threat caused the doctor to withdraw. The lawyer was disciplined for violating DR 1-102(A)(4). See also OSB Legal Ethics Op No 1992-132 (attempt to dissuade witness from testifying, even if unsuccessful, violates DR 1-102(A)(4)).

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary OR References: DR 7-102(B), 4-101
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 66-65, Wolfram §§ 12.5, 12.6, 13.3.6
OR Commentary: EOL §§ 7.9, 9.14-.15, 10.47

3.3:610      Duty to Reveal Fraud to the Tribunal

Under DR 7-102(B) a lawyer must take remedial action when the lawyer receives information clearly establishing client fraud on a person or tribunal, or a fraud by a person other than a client on a tribunal. OSB Legal Ethics Op No 1991-34 (remedial action in both civil and criminal context); OSB Legal Ethics Op No 1991-53 (discussion of duty not to assist in fraudulent conduct); see In re A., 276 Or 225, 554 P2d 479 (1976) (lawyer who knew through confidential information from client that client’s testimony was false and misleading and client refused to permit lawyer to disclose information to court, lawyer could not reveal confidential information and was obligated to withdraw).

Under DR 4-101(C)(3), a lawyer who learns that a client intends to commit a crime may, but is not required to, disclose the client’s intent and the information necessary to prevent that crime. DR 7-102(A)(7) and (8) prohibit a lawyer from assisting a client in the furtherance of a crime or fraud. In addition, a lawyer who assists a client in committing a crime may also become criminally liable for the illegal conduct. See ORS 161.155 (accomplice liability).

Fraud on a tribunal by client

Pursuant to In re A., 276 Or 225, 554 P2d 479 (1976), and OSB Legal Ethics Op 1991-34, an Oregon lawyer may not reveal fraud on a tribunal. The lawyer must instead call upon the client to correct the fraud and, if the client refuses to do so, seek leave to withdraw without disclosing the reasons therefore. It is likely that Oregon would reach the same conclusion even if the fraud were not that of the client but that of a third-party witness.

A lawyer may refuse to aid or participate in conduct that the lawyer believes to be unlawful. DR 7-101(B)(2).

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary OR References: DR 7-102
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5
OR Commentary: EOL §§ 7.9, 9.14-.15, 10.47

DR 7-102(A)(4), (5), and (6) prohibit a lawyer from using perjured or false evidence. While each subsection requires knowing conduct, none requires an intent to deceive. Id.; see In re Jenson, 1 DB Rptr 107 (1986) (lawyer disciplined for using imposter as substitute for defendant to create misidentification by victim); see also OSB Legal Ethics Op No 1991-34.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary OR References: DR 7-102(A), 7-110(B)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 112 , Wolfram § 12.7
OR Commentary: EOL § 10.38

No counterpart to MR 3.3(d) exists in the DRs. Nevertheless, the duty found in MR 3.3(d) is paralleled by the requirements of DR 7-102(A). Cf. In re Greene, 290 Or 291, 297, 620 P2d 1379 (1980) (court indicated that ex parte matters may require heightened duty of candor because “[j]udges must be able to rely upon the integrity of the lawyer”).

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-109, 7-106, 7-102, 7-104(A)
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.1-.55

3.4:101      Model Rule Comparison

DR 7-109(A), 7-109(B), and 7-106(C)(7) parallel the obligations imposed by MR 3.4(a). See Annotated ABA Model Rules of Professional Conduct Rule 3.4. Regarding MR 3.4(b), DR 7-102(A)(6) and 7-109(C) impose similar restrictions. Id.; see also EC 7-28. DR 7-106(A) is substantially similar to MR 3.4(c). The DRs do not contain a counterpart to MR 3.4(d). DR 7-106(C)(1), (2), (3), and (4) are substantially similar to MR 3.4(e). Regarding MR   3.4(f), DR 7-104(A)(2) imposes related restrictions. See DR 1-102(A)(3) (lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

3.4:102      Model Code Comparison

For the most part, DR 7 follows the language of the ABA Model Code.

3.4:103      Overview

In general, DR 7-101 to 7-110 outline the boundaries of appropriate conduct in litigation. The rules of evidence and of procedure also define appropriate litigation conduct. See, e.g., Oregon Rules of Civil Procedure, Federal Rules of Civil Procedure, Oregon Evidence Code, Federal Rules of Evidence, Oregon Uniform Trial Court Rules, Supplementary Local Rules, and U.S. District Court Local Rules. Specific statutes also prohibit abusive litigation tactics. See, e.g., ORCP 17 C; FRCP 11, 37; 28 USCA § 1927 (1994); ORS 20.105.

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary OR References: DR 7-109(A), 7-109(B), 7-102(A)(3), 1-102(A)(4), ORS 162.295
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 118, 119, Wolfram § 12.3, 12.4
OR Commentary: EOL § 10.6

The DRs prohibit the unlawful destruction or concealment of evidence. DR 7-102(A)(3), 7-109(A), 7-109(B); see also DR 1-102(A)(4). In addition, the Oregon Criminal Code prohibits tampering with physical evidence. ORS 162.295; see also Annotation, “Fabrication or Suppression of Evidence as Ground of Disciplinary Action Against Attorney,” 40 ALR3d 169 (1971).

In In re Smith, 316 Or 55, 848 P2d 612 (1993), a lawyer in a workers’ compensation case violated DR 1-102(A)(4) (prohibiting conduct prejudicial to administration of justice) by threatening the examining physician with litigation if the doctor did not issue an opinion favorable to the lawyer’s client. See OSB Legal Ethics Op No 1992-132.

If a lawyer is aware of the existence of physical evidence of a crime that has been committed, the lawyer’s knowledge is protected as a confidence of the client. OSB Legal Ethics Op No 1991-105. A lawyer may receive such physical evidence but must transfer it to the victim or to law enforcement officials anonymously, after first informing the client. Consequently, it will often be in the client’s best interests for the lawyer not to take possession of physical evidence. Cf. OSB Legal Ethics Op No 1991-105.

“[A] lawyer should not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.” EC 7-27; see also DR 7-109(A), (B); State v. Ben, 310 Or 309, 798 P2d 650 (1990) (defense lawyer’s instruction to nonparty witness to speak with prosecutor only in presence of defense attorney violated criminal discovery statute). But see State v. York, 291 Or 535, 541, 632 P2d 1261 (1981) (affirming conviction despite defendant’s claim that prosecutor improperly advised prospective witnesses that “it would be better if [we] didn’t say anything” to defense).

Neither criminal lawyers nor civil litigators should restrict access to witnesses. Nevertheless, absent an objection from the witness, all parties have the right to interview witnesses in private without the opposing lawyer present. International Business Machines Corp. v. Edelstein, 526 F2d 37 (2d Cir 1975).

Both the DRs and the Oregon Criminal Code prohibit lawyers from encouraging witnesses to testify falsely. DR 7-109(C); ORS 162.285; see In re Smith, 316 Or 55, 59-61, 848 P2d 612 (1993) (lawyer for workers’ compensation claimant violated DR 1-102(A)(4) by threatening lawsuit against doctor unless doctor gave favorable opinion); see also OSB Legal Ethics Op No 1992-132 (attempts to persuade witness not to testify, even if unsuccessful, may violate DR 1-102(A)(4)).

3.4:210      Physical Evidence of Client Crime

If a lawyer is aware of the existence of physical evidence of a crime that has been committed, the lawyer’s knowledge is protected as a confidence of the client. OSB Legal Ethics Op No 1991-105. A lawyer may receive such physical evidence but must transfer it to the victim or to law enforcement officials anonymously, after first informing the client. Consequently, it will often be in the client’s best interests for the lawyer not to take possession of physical evidence. Cf. OSB Legal Ethics Op No 1991-105.

3.4:300   Falsifying Evidence

Primary OR References: DR 7-109, 7-102, 1-102(A)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 118, Wolfram § 12.3
OR Commentary: EOL §§ 10.6, 10.47, 10.49

DR 7-102(A) prohibits the use of perjured or false evidence. See DR 7-102(A)(4)-(6). Each subsection requires knowing conduct. However, these rules do not require an intent to deceive. See, e.g., In re Jenson, 1 DB Rptr 107 (1986) (lawyer disciplined for substituting impostor for defendant to facilitate misidentification by victim); see also OSB Legal Ethics Op No 1991-34.

3.4:310      Prohibited Inducements

DR 7-109(C) prohibits payments to witnesses contingent upon the context of the witness’s testimony of the outcome of the case. A lawyer may reimburse a witness for reasonable expenses or loss of time incurred in attending or testifying. A lawyer may also pay a reasonable fee to expert witnesses. See, e.g., In re Martin, 308 Or 125, 775 P2d 842 (1989) (lawyer disbarred for bribery conviction).

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary OR References: DR 7-106(A)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 105, Wolfram § 12.1
OR Commentary: EOL § 10.48

Both DR 7-106(A) and ORS 9.527(3) encourage lawyers and their clients to respect the court and its rules. A lawyer does not violate either DR 7-106(A) or ORS 9.527(3) by counseling a client to disregard or disobey a void order of the court. In re Tamblyn, 298 Or 620, 627, 695 P2d 902 (1985).

3.4:500   Fairness in Pretrial Practice

Primary OR References: DR 7-109, 7-102, 7-106, 7-101
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 106, Wolfram § 12.4
OR Commentary: EOL §§ 10.24-.33

(A) Generally

The DRs require that Oregon lawyers comply with the rules of procedure regarding discovery. See DR 7-109(A), 7-102(A)(3); see also DR 7-106(C)(7); OSB Legal Ethics Op Nos 1991-105, 1991-84, 1991-59; DR 7-102(A)(1), (5).

Absent a discovery request, no state (as distinct from federal) rule generally obligates a lawyer to produce civil discovery. Charles W. Wolfram, Modern Legal Ethics § 12.3.2 at 639-40 (1986). However, if a valid request is made and the lawyer withholds documents or information knowing that the lawyer is required by law to reveal it, there is a violation of DR 7-102(A)(3) if not also of other sections. In re Harrington, 301 Or 18, 32-33, 718 P2d 725 (1986) (pretrial distribution of funds from estate not made “knowingly” in sense that distribution was known to be illegal).

In criminal cases, however, the applicable rules of ethics and procedure require a prosecutor to make timely disclosure of exculpatory information or information that would tend to mitigate the degree of the offense or reduce the punishment. DR 7-103(B); EC 7-13; ABA Standards Relating to the Administration of Criminal Justice 3.11; Brady v. State of Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963). Oregon criminal discovery statutes also require disclosure by both prosecutors and defense lawyers of certain information. ORS 135.805, et seq.

(B) Delay

In contrast to MR 3.2, which explicitly requires a lawyer to “make reasonable efforts to expedite litigation consistent with the interests of the client,” DR 7-102(A)(1) prohibits delay of a trial or other conduct only “when it is obvious that such action would serve merely to harass or maliciously injure another.” See DR 7-101(A) (prohibits delay to extent that delay amounts to failure to seek client’s lawful objectives or failure to carry out contract of employment, or results in prejudice or damage to client).

(C) Particular Forms of Discovery Abuse

DR 7-102(A)(1) contains the general principles that prohibit discovery abuse. See also DR 7-102(A)(3), 7-106(C)(7). Each of these provisions requires at least knowing, if not intentional, conduct. See FRCP 11; ORCP 17; cf. OSB Legal Ethics Op No 1991-59.

(D) Motion Practice

The Uniform Trial Court Rules and Supplemental Local Rules impose obligations in motion practice similar to rules of professional conduct. First, “[w]hen a party seeks to obtain an order from a judge, the party must inform that judge of any ruling, hearing or application for a ruling or hearing before any other judge that concerns the subject of the order requested.” UTCR 3.130; see also SLR 5.045(1) (Multnomah County) (prohibiting motions for reconsideration). Second, both the Uniform Trial Court Rules (UTCR 5.010) and the U.S. District Court Local Rules (LR 7.1) require that the parties confer in an effort to resolve the dispute before filing certain motions in state court and all motions in federal court.

3.4:600   Improper Trial Tactics

Primary OR References: DR 7-106(C)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 107, Wolfram § 12.1
OR Commentary: EOL §§ 10.39-.52

For the most part, DR 1-102(A)(3), (4), 7-102(A), and 7-106(C) outline prohibited trial conduct. With minor exceptions, those rules require action to have been taken knowing that it is wrong.

(A) Peremptory Challenges

Case law details the restrictions on lawyers exercising peremptory challenges. See, e.g., Batson v. Kentucky, 476 US 79, 89, 106 S Ct 1712, 90 L Ed 2d 69 (1986) (criminal); Edmonson v. Leesville Concrete Co., Inc., 500 US 614, 111 S Ct 2077, 114 L Ed 2d 660 (1991) (civil).

(B) The Attorney-Witness Rule

DR 5-102(A) and (B) detail Oregon’s attorney-witness rule. See OSB Legal Ethics Op No 1991-8 (lawyer may act as advocate in trial in which another lawyer in lawyer’s firm is likely to be called as witness on behalf of lawyer’s client).

DR 5-102(A)(3) permits a lawyer-witness to continue to try the case if disqualification “would work a substantial hardship on the client.” A lawyer’s particular skills or a client’s emotional makeup do not constitute circumstances warranting application of the “substantial hardship” exception. See In re Lathen, 294 Or 157, 165, 654 P2d 1110 (1982).

A lawyer can also appear pro se and testify on the lawyer’s own behalf. A lawyer-witness who will testify on behalf of the client may handle pretrial and appellate matters.

(C) Opening Statement

During the opening statement of a case, ORCP 58 B(1) and federal practice permit only a concise statement of the facts and prohibit argument. If a lawyer intentionally or habitually ignores these rules, the lawyer violates DR 7-106(C)(7). A lawyer who argues the law during an opening statement could risk discipline under DR 7-106(C)(7) or 7-102(A)(5).

(D) Mentioning Inadmissible Evidence, Personal Knowledge, or Personal Belief

During an opening statement, a lawyer who refers to inadmissible evidence or to personal knowledge of the facts in issue may violate DR 7-106(C)(1), (3), and (4). See In re Rudie, 290 Or 471, 484, 622 P2d 1098 (1981).

(E) Offering or Suggesting the Existence of Inadmissible Evidence

If a lawyer offers evidence without a reasonable basis to believe that the evidence is relevant, the lawyer violates DR 7-106(C)(1). OSB Legal Ethics Op No 1991-84.

(F) Use of Perjured of False Evidence

DR 7-102(A)(4), (5), and (6) prohibit the use of perjured or false evidence. Each subsection requires knowing conduct. However, these rules do not require an intent to deceive. See, e.g., In re Jenson, 1 DB Rptr 107 (1986) (substituting impostor for defendant to facilitate misidentification by victim); see also OSB Legal Ethics Op No 1991-34.

(G) Manner of Examination or Cross-Examination

During the direct examination or cross-examination of a witness, DR 7-106(C)(2) prohibits a lawyer from asking “any question that the lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.” See also ORS 44.080 (witness has right to be protected from irrelevant, insulting, or improper questions; harsh or insulting demeanor; or excessive detention).

(H) Offering Only True Rebuttal Evidence

Under the rules of evidence, a lawyer may not offer evidence as rebuttal that could have and should have been offered as a part of the case in chief. Henderson v. U. P. R. R. Co., 189 Or 145, 154-55, 219 P2d 170 (1950); cf. DR 7-106(C)(7) (lawyer shall not “[i]ntentionally or habitually violate any established rule of procedure or of evidence”).

(I) Final Argument

As in opening statements, ethical rules govern final argument. DR 7-106(C)(3), (4), (7); see generally Charles W. Wolfram, supra, § 12.1.2 at 624.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary OR References: DR 7-104(A), 7-109
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 116, Wolfram § 12.4.2
OR Commentary: EOL § 10.6

“[A] lawyer should not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.” EC 7-27; see also DR 7-109(A), (B); State v. Ben, 310 Or 309, 798 P2d 650 (1990) (defense lawyer’s instruction to nonparty witness to speak with prosecutor only in presence of defense attorney violated criminal discovery statute). But see State v. York, 291 Or 535, 541, 632 P2d 1261 (1981) (affirming conviction despite defendant’s claim that prosecutor advised prospective witnesses that “it would be better if [we] didn’t say anything” to defense).

Neither civil lawyers nor criminal lawyers should restrict access to witnesses.

Absent the objection of a witness and within certain limits including, but not limited to, those established by DR 7-104(A)(1), all parties may interview witnesses in private without the opposing lawyer present. International Business Machines Corp. v. Edelstein, 526 F2d 37 (2d Cir 1975).

DR 7-109(C) and ORS 162.285 prohibit lawyers from encouraging witnesses to testify falsely.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-108, 7-110, 7-106
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.38, 10.48, 10.53, 14.15, 18.14

3.5:101      Model Rule Comparison

DR 7-108 and DR 7-110 parallel the restrictions imposed by MRs 3.5(a) and (b). DR 7-106(C)(6) states a rule similar to MR 3.5(c).

3.5:102      Model Code Comparison

In general, DR 7 follows the language of the ABA Model Code.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary OR References: DR 7-108, 7-110
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 113, 115, Wolfram §§ 11.3, 11.4
OR Commentary: EOL §§ 10.38, 10.53, 14.15, 18.14

DR 7-108 limits contact with jurors before, during, and after trial. A lawyer has an obligation to inform the court of improper contact with a juror at any time that the court can correct the effect of the improper contact. In re R., 276 Or 365, 368, 554 P2d 522 (1976). DR 7-110 prohibits certain contacts with a judge or official before whom any case is pending. DR 7-110 also applies to administrative agencies. OSB Legal Ethics Op Nos 1991-84, 1991-83.

DR 7-110(B)(1), (2), (3), and (4) outline exceptions to the rule against ex parte contact. In certain circumstances, a lawyer may obtain temporary restraining orders without notice. See, e.g., ORS 107.710-.730 (Family Abuse Prevention Act); In re Jordan, 293 Or 788, 652 P2d 1268 (1982). But see ORCP 79 B(1)(b). Under DR 7-110(B)(2) a lawyer may write to the court, as long as the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if unrepresented. See also ORCP 9 A.

3.5:210      Improperly Influencing a Judge

JR 3-103 of the CJC regulates the ability of a judge or members of the judge’s family to accept gifts directly or indirectly from lawyers. See DR 7-110(A); OSB Legal Ethics Op No 1991-56.

3.5:220      Improperly Influencing a Juror

DR 7-108 governs a lawyer’s contact with jurors, before trial, during trial, and after trial. See also DR 7-108(E)-(G); OSB Legal Ethics Op No 1995-143.

3.5:300   Improper Ex Parte Communication

Primary OR References: DR 7-108, 7-110
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 112, Wolfram § 11.3.3
OR Commentary: EOL §§ 10.38, 10.53

DR 7-110 prohibits certain contacts with a judge or official before whom any case is pending. DR 7-110 also applies to administrative agencies. OSB Legal Ethics Op Nos 1991-84, 1991-83. DR 7-110(B)(1), (2), (3), and (4) outline exceptions to the rule against ex parte contact. In certain circumstances, a lawyer may obtain temporary restraining orders without notice. See, e.g., ORS 107.710-.730 (Family Abuse Prevention Act); In re Jordan, 293 Or 788, 652 P2d 1268 (1982). But see ORCP 79 B(1)(b). Under DR 7-110(B)(2) a lawyer may write to the court, as long as the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if unrepresented. See Forelaws on Board v. Energy Fac. Siting Council, 306 Or 205, 229, 760 P2d 212 (1988) (Oregon’s Administrative Procedures Act “does not prohibit ex parte communications; it requires only that such communications be disclosed and that other parties be given an opportunity to rebut the substance of the communications” (citing ORS 183.462)); see also ORCP 9 A.

3.5:400   Intentional Disruption of a Tribunal

Primary OR References: DR 7-106(C)(6)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 105, Wolfram § 12.1.3
OR Commentary: EOL § 10.48

DR 7-106(C)(6) prohibits a lawyer from engaging “in undignified or discourteous conduct which is degrading to a tribunal.” However, a lawyer has a duty to the client “to preserve [the] client’s rights by making appropriate objections to any remark of the Court which reasonably, in [the lawyer’s] opinion, tends to prejudice [the] client’s case in the minds of the jurors.” State of Oregon v. Yates, 208 Or 491, 501, 302 P2d 719 (1956) (lawyer did not act unethically by objecting to judge’s use of irascible tone of voice toward witness). See generally W.E. Shipley, Annotation, “Attorney’s Criticism of Judicial Acts as Ground of Disciplinary Action,” 12 ALR3d 1408 (1967).

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-107
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.41, 10.48, Peter R. Jarvis, “Legal Ethics Limitations on Pretrial Publicity and the Case of Ron Hoevet,” 31 Willamette L Rev 1 (1995)

3.6:101      Model Rule Comparison

“Oregon’s version of DR 7-107 differs greatly from the equivalent provision of the ABA Model Code of Professional Responsibility and from MR 3.6. Both the ABA Model Code and the Model Rule focus on specific types of statements that may and may not be made.” In contrast, the Oregon rule outlaws

“an extrajudicial statement pertaining to that matter that a reasonable person would expect to be disseminated by means of public communication if the statement poses a serious and imminent threat to the fact-finding process in a governmental adjudicative proceeding and if the lawyer either intends to affect that process or reasonably should know that the statement poses such a threat and acts with indifference to that effect.” DR 7-107(A).

The rule, as amended in 1986, requires either a public communication and an intent to affect the fact-finding process or a public communication and a reasonable risk of serious and imminent threat to the adjudicative process coupled with indifference to that effect. Public communication means comments that are “of a kind designed to reach the news media or those members of the citizenry who might be expected to be jurors.” In re Burrows, 290 Or 131, 135, 618 P2d 1283 (1980).

Under DR 7-107 a lawyer may reply to charges of misconduct publicly made against the lawyer, or the lawyer may also participate in proceedings of legislative, administrative, or investigative bodies. DR 7-107(B); cf. OSB Legal Ethics Op No 1991-104. To the extent that DR 7-107(A) prohibits extrajudicial statements, a lawyer must also exercise reasonable care to prevent the lawyer’s employees from making statements that the lawyer would be prohibited from making.

3.6:102      Model Code Comparison [see 3.6:101]

3.6:200   Improper Extrajudicial Statements

Primary OR References: DR 7-107(A)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 109, Wolfram § 12.2
OR Commentary: EOL § 10.41, Peter R. Jarvis, “Legal Ethics Limitations on Pretrial Publicity and the Case of Ron Hoevet,” 31 Willamette L Rev 1 (1995)

In Gentile v. State Bar of Nevada, 501 US 1030, 111 S Ct 2720, 115 L Ed 2d 888 (1991), rev’g 787 P2d 386 (Nev 1990), the court held that a lawyer’s pretrial publicity does not justify discipline unless it creates a substantial likelihood of a material adverse effect on the fact-finding process in an adjudicative proceeding. See Geoffrey C. Hazard, Jr. & W. William Hodes, 1 The Law of Lawyering: Handbook on the ABA Model Rules of Professional Conduct § 3.6:102 (Supp 1991). Oregon has adopted the clear and present danger of serious imminent threat standard proposed by Justice Kennedy in Gentile. See, e.g., In re Schenck, 318 Or 402, 870 P2d 185 (1994); Oregon State Police Assn. v. State of Oregon, 308 Or 531, 536, 783 P2d 7 (1989); City of Hillsboro v. Purcell, 306 Or 547, 553, 761 P2d 510 (1988).

3.6:300   Permissible Statements

Primary OR References: DR 7-107(B)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2
OR Commentary: EOL § 10.41

DR 7-107(B) permits a lawyer to reply to charges of misconduct made publicly against the lawyer. See In re Richmond, 285 Or 469, 591 P2d 728 (1979) (lawyer’s letter to governor, legislature, and media regarding pending administrative land use proceeding did not establish impermissible interference with proceeding).

3.6:400   Responding to Adverse Publicity

Primary OR References: DR 7-107
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 109, Wolfram § 12.2
OR Commentary: EOL § 10.41

In Oregon, DR 7-107 does not state an affirmative right to reply to publicity that is adverse to the client. See Peter R. Jarvis, “Legal Ethics Limitations on Pretrial Publicity and the Case of Ron Hoevet,” 31 Willamette L Rev 1 (1995); see also Gentile v. State Bar of Nevada, 501 US 1030, 111 S Ct 2720, 115 L Ed 2d 888 (1991) (criminal defense lawyer responding to adverse publicity against client). However, DR 7-107(B) permits a lawyer to reply to charges of misconduct made publicly against the lawyer.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 5-102
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:
OR Commentary: EOL § 10.40

3.7:101      Model Rule Comparison

DR 5-102(A) parallels MR 3.7(a). DR 5-102(A) differs from MR 3.7(a) in its use of the phrase “likely to be a witness on behalf of the lawyer’s client” rather than the Model Rule’s formulation “likely to be a necessary witness.” The exceptions stated in DR 5-102(A)(1), (2), and (3) are identical to the exceptions in MR 3.7(a)(1), (2), and (3); however, DR 5-102(A)(4) makes an explicit exception for lawyers appearing pro se. DR 5-102(B) is similar to MR 3.7(b) except that the DR does not create affirmative preclusions stated in the Model Rule. There is no counterpart for DR 5-102(C) in the ABA Model Rules.

3.7:102      Model Code Comparison

Like MR 3.7(a), DR 5-102 is broader than the old ABA Model Code provision in that it generally allows a lawyer to try a case in which a partner or associate of the trial lawyer will be a witness on the client’s behalf.

3.7:200   Prohibition of Advocate as Witness

Primary OR References: DR 5-102(A)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5
OR Commentary: EOL § 10.40

DR 5-102 states the lawyer-witness rule in Oregon. See In re Kinsey, 294 Or 544, 660 P2d 660 (1983) (obtaining client’s agreement not to call lawyer as witness does not avoid DR 5-102(A) if agreement left vital testimony unrebutted); OSB Legal Ethics Op No 1991-8. Under DR 5-102(A)(3), a lawyer-witness may try a case if disqualification “would work a substantial hardship on the client.” DR 5-102(A)(4) permits a lawyer who appears pro se to testify on the lawyer’s own behalf. In addition, a lawyer-witness may handle the client’s pretrial and appellate matters.

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary OR References: DR 5-102(B)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5, 7.6
OR Commentary: EOL § 10.40

A lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness on behalf of the lawyer’s client. DR 5-102(B); OSB Legal Ethics Op No 1991-8. If the lawyer-witness testimony would prejudice the client, the whole firm must withdraw immediately. The client cannot effect a waiver in such a case. OSB Legal Ethics Op No 1991-8.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-103
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 14.1-.6

The DRs govern Oregon lawyers who work for the state or for local government. In re Roger Rook, 276 Or 695, 556 P2d 1351 (1976) (district attorney); In re Burrows, 291 Or 135, 629 P2d 820 (1981) (district attorneys); In re Mettler, 305 Or 12, 748 P2d 1010 (1988) (lawyer acting as securities examiner). The DRs also govern Oregon lawyers who work for the federal government as such unless the DRs create an actual conflict with federal law. EOL § 14.2; Sperry v. State of Florida, 373 US 379, 402, 83 S Ct 1322, 10 L Ed 2d 428 (1963); United States v. Klubock, 639 F Supp 117 (D Mass 1986), aff’d 832 F2d 664 (1st Cir 1987) (en banc); see also USDC LR 83.7 (adopting DRs and ORS chapter 9).

While case law expresses heightened ethical standards for government lawyers, these declarations are aspirational in nature. Despite these general philosophical statements, there is no Oregon case holding that the DRs apply differently to government attorneys. See State v. Pinnell, 311 Or 98, 108 n 16, 806 P2d 110 (1991). Nevertheless, specific statutes and regulations do govern government lawyers. For instance, 28 CFR §§ 45.1-.4 (2001) and 5 CFR §§ 3801.101-.106 (2001) outline the standards of ethical conduct for lawyers in the U.S. Department of Justice. Similarly, ORS 8.610 to 8.850 outline additional standards that govern Oregon district attorneys.

3.8:101      Model Rule Comparison

DR 7-103(A) corresponds to the prohibition in MR 3.8(a), but it adds that a prosecutor shall not prosecute when “it is obvious that the charges are not supported by probable cause.” DR 7-103(B) follows the language of MR 3.8(d), but it does not include the Model Rule’s requirement of disclosure of unprivileged mitigating information at sentencing.

3.8:102      Model Code Comparison

For the most part DR 7 follows the language of the ABA Model Code.

3.8:200   The Decision to Charge

Primary OR References: DR 7-103(A)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
OR Commentary: EOL § 14.4-.5

To violate DR 7-103(A), a prosecutor must know or it must be obvious that probable cause did not support the criminal charges. However, if a grand jury returns an indictment or a judicial officer independently determines that probable cause exists, the requirements of DR 7-103(A) would be satisfied. In re Burrows, 291 Or 135, 145-46, 629 P2d 820 (1981); see State v. Woodson, 315 Or 314, 318 n 7, 845 P2d 203 (1993) (prosecutor who tried rape charge knowing that grand jury indicted on attempted rape and did not consider facts supporting contemplated rape could risk significant ethical violations). In In re Leonhardt, 324 Or 498, 930 P2d 844 (1997), a prosecutor violated DR 7-103(A) and DR 1-102(A)(4) by obtaining an indictment without either probable cause or sufficient evidence and altering the indictment before it was filed.

When considering the restrictions on a prosecutor’s ability to file changes, one should also review the rules that apply to plea bargaining. For instance, ORS 135.405(4) states: “Similarly situated defendants should be afforded equal plea agreement opportunities.” If a prosecutor engages in selective plea bargaining in violation of this statute, the prosecutor may also violate DR 1-102(A)(4). In re Roger Rook, 276 Or 695, 556 P2d 1351 (1976); see In re Miller, 310 Or 731, 801 P2d 814 (1990); see also OSB Legal Ethics Op No 1991-113 (prosecutor may offer plea bargain conditioned upon either defendant’s waiver of civil remedies against arresting officers or simultaneous resolution of pending forfeiture or both).

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary OR References: DR 7-103, 7-104(A)(2)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
OR Commentary:

The DRs do not contain a counterpart to MR 3.8(b). See DR 7-104(A)(2) (communication with unrepresented person).

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary OR References: DR 7-103, 7-104(A)(2)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
OR Commentary:

The DRs do not contain a counterpart to MR 3.8(c). See DR 7-104(A)(2) (communication with unrepresented person).

3.8:500   Disclosing Evidence Favorable to the Accused

Primary OR References: DR 7-103(B)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.5
OR Commentary: EOL § 14.7

Consistent with the constitutional requirements of Brady v. State of Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963), DR 7-103(B) requires a prosecutor to disclose exculpatory favorable evidence. EOL § 14.7; see also United States v. Agurs, 427 US 97, 96 S Ct 2392, 49 L Ed 2d 342 (1976); United States v. Bagley, 473 US 667, 105 S Ct 3375, 87 L Ed 2d 481 (1985). Importantly, however, while the rule in Brady is only triggered by a defense request, a prosecutor’s obligation under DR 7-103(B) requires disclosure of exculpatory material absent such a request. Courts have also held that a prosecutor may not advise witnesses not to speak to defense counsel. State v. York, 291 Or 535, 632 P2d 1261 (1981); United States v. Black, 767 F2d 1334 (9th Cir 1985); cf. State v. Ben, 310 Or 309, 798 P2d 650 (1990) (defense lawyer criticized for obstruction of discovery).

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary OR References: DR 7-107
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10
OR Commentary: EOL § 10.41

There is no counterpart to MR 3.8(e) in the DRs. See generally DR 7-107 (trial publicity).

3.8:700   Issuing a Subpoena to a Lawyer

Primary OR References: DR 7-102(A)(1)
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 97
OR Commentary: EOL §§ 10.2-.6

The DRs do not contain a counterpart to MR 3.8(f). However, DR 7-102(A)(1) prohibits a lawyer taking an action knowing that “such action would serve merely to harass or maliciously injure another.”

3.8:800   Making Extrajudicial Statements

Primary OR References: DR 7-107
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 109, Wolfram § 12.2.2
OR Commentary: EOL § 10.41

The DRs do not contain a direct counterpart to MR 3.8(g). Nevertheless, DR 7-107 does regulate extrajudicial statements by all lawyers in Oregon. See 3.6:100-3.6:400.

3.8:900   Peremptory Strikes of Jurors

Primary OR References: DR 7-106
Background References: Other Jurisdictions
Commentary:
OR Commentary: EOL § 10.39A

See Batson v. Kentucky, 476 US 79, 89, 106 S Ct 1712, 90 L Ed 2d 69 (1986) (prosecutor may not peremptorily challenge members of defendant’s own race, unless prosecution can assert non-race-related justification for challenge).

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-106(B)(2), 5-102
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.1, 10.40

3.9:101      Model Rule Comparison

The DRs do not contain a direct counterpart to MR 3.9. See DR 7-106(B)(2), 5-102 (attorney witness rule); EC 7-15, 7-16, 8-5; see also OSB Legal Ethics Op No 1991-84 (application of DR 7-106 to administrative proceedings).

3.9:102      Model Code Comparison

For the most part, DR 7 follows the language of the ABA Model Code.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary OR References: DR 7-106(B)(2), 5-102
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 104, Wolfram § 13.8
OR Commentary: EOL §§ 10.1, 10.40

The DRs do not contain a counterpart to MR 3.9. See DR 7-106(B)(2), 5-102 (attorney witness rule); EC 7-15, 7-16, 8-5; see also OSB Legal Ethics Op No 1991-84 (application of DR 7-106 to administrative proceedings).