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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 1-102(A)(3), 7-102(A), ORS 9.460(2), 9.527(4)
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 9.6, 9.13

Several provisions of Oregon’s DRs and the Oregon Revised Statutes prohibit lawyers from engaging in fraudulent or dishonest conduct.

(A) DR 1-102(A)(3) prohibits lawyers from intentionally engaging in conduct that involves dishonesty or deceit. This provision is most often relied upon for discipline in cases involving overt dishonesty or failure to file tax returns. See, e.g., In re Phelps, 306 Or 508, 760 P2d 1331 (1988) (conversion of client funds; false notarization). But cf. DR 1-102(D) (lawyers may, under certain circumstances, supervise or direct covert operations to gather evidence).

(B) DR 7-102(A)(3) prohibits a lawyer, in representing a client or in the lawyer’s self-interest, from concealing or knowingly failing “to disclose that which the lawyer is required by law to reveal.”

(C) DR 7-102(A)(5) prohibits a lawyer, in representing a client or in the lawyer’s own self-interest, from “[k]nowingly mak[ing] a false statement of law or fact.” See, e.g., In re Gustafson, 327 Or 636, 968 P2d 367 (1998) (misrepresentation may be made by knowing failure to disclose material fact to court); see also OSB Legal Ethics Op No 1991-53.

(D) DR 7-106(B)(1) deals with nondisclosure, rather than misrepresentation: “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.”

(E) ORS 9.527(4) proscribes willful deceit.

(F) ORS 9.460(2) proscribes misleading the court or jury.

(G) DR 7-102(A)(4) and (6) proscribe the use or creation of false testimony or evidence.

(H) DR 1-102(A)(5) prohibits stating or implying an ability to improperly influence a public official or tribunal.

4.1:101      Model Rule Comparison

DR 7-102(A)(5) and 7-102(A)(3) are substantially similar to MRs 4.1(a) and (b), respectively.

4.1:102      Model Code Comparison

Language in DR 7-102(A) track the ABA Model Code.

4.1:200   Truthfulness in Out-of-Court Statements [see 4.1:100]

Primary OR References:
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL § 98
OR Commentary:

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary OR References:
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA § 71:201, ALI-LGL §§ 66, 94, Wolfram §§ 12.6, 13.3
OR Commentary:

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-104(A)(1)
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:
OR Commentary: EOL § 6.10

4.2:101      Model Rule Comparison

DR 7-104(A)(1) is substantially identical to MR 4.2 except for the substitution of the term “person” for “party.”

4.2:102      Model Code Comparison

DR 7-104(A)(1) is similar to the ABA Model Code, but DR 7-104(A)(1)(c) includes an exception for communication when “a written agreement requires a written notice or demand to be sent to such [represented] person, in which case a copy of such notice or demand shall also be sent to such [represented] person’s lawyer.” The Oregon rule also articulates that this prohibition extends to “a lawyer representing the lawyer’s own interests.”

4.2:200   Communication with a Represented Person

Primary OR References: DR 7-104(A)(1)
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA § 71:301, ALI-LGL § 99-102, Wolfram § 11.6.2
OR Commentary: EOL § 6.10

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

(A) Current Officers, Directors, and Employees of Parties

OSB Legal Ethics Op No 1991-80 identifies an exclusive list of groups that constitute represented persons within the meaning of DR 7-104(A)(1), even if the attorney for the entity does not separately represent them: (1) employees whose conduct is directly at issue in the matter subject to dispute, (2) employees who are in management positions with the entity, and (3) corporate officers or directors, who necessarily are part of corporate management. Absent consent by opposing counsel, the attorney may not directly contact these groups, nor may the attorney cause a client to communicate with the opposing party. See, e.g., In re Murray, 287 Or 633, 601 P2d 780 (1979).

OSB Legal Ethics Op No 1991-6 notes that DR 7-104(A)(1) “does not prohibit, per se, communications between parties who happen to have counsel. What is prohibited is simply the direct or indirect initiation or abetting by attorneys of such communications.” See also OSB Legal Ethics Op No 1997-147, 1998-152, 2000-161.

An attorney who contacts the other side’s employees may not, in any event, misrepresent who the attorney is, who the attorney represents, or why the attorney is making the contact. See, e.g., DR 1-102(A)(3). The attorney also may not give legal advice to the employee. See DR 7-104(A)(2); OSB Legal Ethics Op Nos 1991-42, 1991-16. Further, it is clear that opposing counsel who contacts employees who are not represented persons must not permit such employees to reveal to them the employer’s confidences.

(B) Former Officers, Directors, and Employees of Parties

If counsel for the employer wishes to talk to a former officer, director, or employee about matters that relate to that person’s work on the employer’s behalf, that conversation should be deemed privilege. Work product protection may also apply.

On the other hand, former directors, officers, or employees should not and need not be held to be off-limits to opposing counsel pursuant to DR 7-104(A)(1). The attorney may not ask about and must not permit the former officer, director, or employee to reveal the opposing party’s confidences.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

DR 7-104(A)(1) is generally applicable in criminal cases as it is in civil cases.

However, the “authorized by law” exception permits Oregon prosecutors to “engage in preindictment, prearrest and other investigative contacts with suspects even though those suspects are known to be represented by counsel.” OSB Legal Ethics Op No 1991-126. DR 7-104(A)(1) does not prevent a prosecutor from asking questions of a represented party during grand jury proceedings.

However, in Oregon, a prosecutor is prohibited from “talk[ing] to a criminal defendant about a matter on which the criminal defendant is unrepresented if the criminal defendant is also represented on another matter unless the attorney for the criminal defendant in the other matter consents.” OSB Legal Ethics Op No 1991-126; see, e.g., In re Burrows, 291 Or 135, 629 P2d 820 (1981). Further, prosecutors are prohibited from using “go-betweens to circumvent defense counsel in the discussion or negotiation of a plea bargain.” OSB Legal Ethics Op No 1991-126.

4.2:230      Communications "Authorized by Law" -- Other

The “authorized by law” exception is likely to be strictly limited to circumstances in which such contact is fairly clearly permitted by statute. See OSB Legal Ethics Op No 1991-6. Examples of such authorizations include ORS 20.080(1) (provides for certain written demands to be served “on the defendant”), ORS 23.710(1) (“mail addressed to the judgment debtor”), and ORCP 7 D (provides for service of process upon party).

4.2:240      Communication with a Represented Government Agency or Officer

Accord, OSB Legal Ethics Op No 1998-152. See In re Spies, 316 Or 530, 852 P2d 831 (1993) (attorney disciplined for communicating directly with county commissioners and employees when attorney knew that they were represented by counsel in particular contested matter). Accord OSB Legal Ethics Op No 1998-152.

4.2:250      Communication with a Confidential Agent of Non-Client

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

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-104(A)(2)
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 10.8-.10

4.3:101      Model Rule Comparison

The DRs do not include a direct counterpart to MR 4.3.

4.3:102      Model Code Comparison

DR 7-104(A)(2) mirrors the ABA Model Code’s rule.

4.3:200   Dealing with Unrepresented Person

Primary OR References: DR 7-104(A)(2)
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA § 71:501, ALI-LGL § 103, Wolfram § 11.6.3
OR Commentary:

Regardless of whether the setting is criminal or civil, a lawyer can communicate with unrepresented persons as long as the attorney does not give legal advice, other than the advice to obtain counsel, or make misrepresentations to the person. DR 7-104(A)(2); OSB Legal Ethics Op No 1991-42.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 7-106(C)(2), 7-102(A)(1), 7-108(D) and (E)
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:
OR Commentary:

4.4:101      Model Rule Comparison

The DRs do not contain a direct counterpart to MR 4.4, but a set of rules speak to the same substantive issues. DR 7-106(C)(2) provides that a lawyer shall not “[a]sk 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.” DR 7-102(A)(1) provides that a lawyer shall not “take . . . action on behalf of the lawyer’s client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injury another.” DR 7-108(D) provides that “[a]fter discharge of the jury . . . the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror . . . .” DR 7-108(E) provides that a lawyer “shall not conduct . . . a vexatious or harassing investigation of either a venireman or a juror.” See, e.g., State v. Pinnell, 311 Or 98, 806 P2d 110 (1991) (court criticized prosecutor for referring to irrelevant and impermissible matters during voir dire).

4.4:102      Model Code Comparison

This portion of DR 7 tracks the ABA Model Code language.

4.4:200   Disregard of Rights or Interests of Third Persons [see 4.4:101]

Primary OR References: DR 7-106(C), ORS 44.080
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA § 71:101, ALI-LGL §§ 103, 106, 107, Wolfram § 12.4.4
OR Commentary:

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

In conducting the examination or cross-examination of a witness, a lawyer shall not “[a]sk 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.” DR 7-106(C)(2); see also ORS 44.080 (witness has right to be protected from irrelevant, insulting, or improper questions; harsh or insulting demeanor; or excessive detention).

In Oregon, no expert or lay witness can give an opinion that another witness is or is not telling the truth. See Powers v. Officer Cheeley, 307 Or 585, 596 n 11, 771 P2d 622 (1989). Eliciting such testimony may violate DR 7-106(C)(1).

4.4:220      Threatening Prosecution [see 8.4:900]