skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 2-101(A)(1)-(3)
Background References: ABA Model Rule 7.1, Other Jurisdictions
Commentary:
OR Commentary: EOL ch 3

7.1:101      Model Rule Comparison

DR 2-101(A)(1)-(3) is substantively similar to MR 7.1. DR 2-101(A) also specifically proscribes a communication in person, in writing, electronically, and by telephone that:

· “States or implies that the lawyer or the lawyer’s firm is in a position to improperly influence any court or other public body or office,” DR 2-101(A)(5);

· Includes an endorsement or testimonials, unless there is a conspicuous disclaimer that results obtained in one matter may not be obtained for others, DR 2-101(A)(6);

· “States or implies that one or more persons depicted in the communication are lawyers who practice with the lawyer or the lawyer’s firm if they are not,” DR 2-101(A)(7);

· States or implies that portrayed individuals are clients or former clients of the lawyer or the lawyer’s firm if they are not, unless there is a clear and conspicuous disclosure that these persons are actors; DR 2-101(A)(8);

· States or implies that the lawyer’s or law firm’s current or former clients have made statements about the lawyer or the lawyer’s firm, “unless the making of such statements can be factually substantiated,” DR 2-101(A)(9);

· Contains any dramatization or recreation of events, unless there is clear and conspicuous disclosure that a dramatization or recreation is being presented, DR 2-101(A)(10);

· Is false or misleading in a manner not otherwise specified in the rule, DR 2-101(A)(11); or

· “Violates any other disciplinary rule or any statute or regulation applicable to solicitation, publicity or advertising by lawyers,” DR 2-101(a)(12). For example, Oregon statutes prohibiting unfair trade practices also create constraints on lawyer advertising. See ORS 646.605-.656, 646.881-.885.

7.1:102      Model Code Comparison

MC DR 2-101(A) provides that “[a] lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.” MC DR 2-101(B) enumerates categories of information that may be permissibly disseminated, “in a dignified manner,” in the geographic area of the lawyer’s practice or residence. DR 2-101(A)(5) is substantially identical to MC DR 9-101(C); both are similar to MR 8.4(e).

7.1:200   Lawyer Advertising--In General

Primary OR References: DR 2-101(A)
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 3.3-.7

All communications prohibited by DR 2-101(A) relate in some way to the possibility that consumers of legal services could be misled or misinformed by the communications. DR 2-101(A)(1) through (5) are derived from its predecessor version, which prohibited “false or misleading” communications regarding a lawyer or lawyer’s services. Subsections (6) through (10) of DR 2-101(A) provide more explicit directives than some earlier regulatory efforts with respect to electronic and print media advertising. These provisions also apply to targeted mailings. Finally, subsections (11) and (12) of DR 2-101(A) provide catchall categories for communications that are false or misleading in some respect but do not violate any other subsection of DR 2-101(A) or other limitations on self-promoting communications, such as those contained in other disciplinary rules or in the federal or state statutes prohibiting unfair trade practices.

7.1:210      Prior Law and the Commercial Speech Doctrine

(A) Oregon Constitution

Article I, section 8, of the Oregon Constitution provides for the protection of expressions: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.” The Oregon Supreme Court has not yet assessed the constitutionality of any of the current disciplinary rules concerning advertising and solicitation under this provision. For several reasons, the prevailing analysis under the First Amendment to the U.S. Constitution provides few insights into how the Oregon courts will apply Article I, section 8 in the advertising and solicitation context.

First, in construing Article I, section 8, the Oregon courts have not differentiated between commercial speech and other forms of protected expression. See, e.g., Bank of Oregon v. Independent News, 298 Or 434, 439-40, 693 P2d 35, cert den 474 US 826 (1985). Thus, the Article I, section 8 case law does not follow the federal principle that commercial speech can be subjected to more stringent regulation than some other forms of federally protected speech.

Second, Article I, section 8 protects all expression that was not prohibited in 1859 or when the first American guarantees of freedom of expression were adopted. See State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982).

Despite the broad scope of Article I, section 8, the indirect regulation of expression through the regulation of its “identifiable effects” is permitted under some circumstances. See Moser v. Frohnmayer, 315 Or 372, 379, 845 P2d 1284 (1993) for the Oregon Supreme Court’s summary of its past decisions in this area.

(B) Background on DRs Regulating Lawyer Solicitation

The DRs on solicitation were originally modeled on the ABA Model Code. They were substantially amended in 1983 and 1986, retaining some elements of the ABA Model Code, incorporating some elements of the ABA Model Rules, and including some provisions found in neither. In 1988 and 1990, the Oregon rules were further revised with respect to direct mail advertising.

Although additional changes in the DRs concerning solicitation were recommended by the Oregon State Bar Advertising Task Force in 1992 and accepted by both the board of governors and the membership, the Oregon Supreme Court rejected the proposed changes in 1993. In its order rejecting the proposed changes, the court asked the OSB to reconsider these provisions in light of Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993), and Edenfield v. Fane, 507 US 761, 113 S Ct 1792, 123 L Ed 2d 543 (1993).

In 1998, DR 2-101 and 2-102(A) were amended to address electronic communication and, in the case of DR 2-101(C) and (E), to elaborate upon the meaning of “advertisement."

7.1:220      False and Misleading Communications

The focus in DR 2-101(A) on limiting false or misleading statements is derived from the U.S. Supreme Court’s repeated assertions in commercial-speech cases that only truthful, nonmisleading commercial speech is afforded constitutional protection. See, e.g., In re R. M. J., 455 US 191, 202, 102 S Ct 929, 71 L Ed 2d 64 (1982). The determination of what constitutes false of misleading communications depends on the circumstances. Id. at 199 n 10. Several Oregon Formal Ethics Opinions, decided under the predecessor version of DR 2-101(A), shed light on what constitutes a false and misleading representation in the context of lawyer advertising. See, e.g., OSB Legal Ethics Op Nos 1991-108 (lawyer who engages in family mediation may advertise in Yellow Pages under “Counselors—Marriage, Family, Child and Individual” if ad indicates services offered are legal in nature), 1991-103 (multistate firm cannot imply that member of firm is admitted to practice in Oregon if that person is not in fact so admitted), 88-11 (1988) (lawyer advertisement stating, without further explanation, “Over $2,000,000 in personal injury recoveries in 1987,” was inherently false and misleading because of its omission of facts necessary to understand statement’s significance); In re Yacob, 318 Or 10, 14-15, 860 P2d 811 (1993) (fact that misrepresentation in advertisement may not have been intentional was not exculpatory for disciplinary purposes).

7.1:230      Creating Unjustifiable Expectations

In Oregon, subsections (2) through (4) of DR 2-101(A) expressly prohibit certain representations about a lawyer or law firm. These are substantially more detailed than the analogous provisions of MR 7.1(b) and (c).

7.1:240      Comparison with Other Lawyers

Neither Oregon case law nor the Oregon Formal Ethics Opinions directly address the disciplinary rules limiting assertions regarding the quality of a lawyer’s services.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 2-101, 2-103
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:
OR Commentary: EOL ch 3

7.2:101      Model Rule Comparison

Both MR 7.2(b) and DR 2-101(B) require a lawyer to keep a copy of certain communications used in advertising for two years after the communication’s last dissemination, along with a record of when and where the communication was used. DR 2-101(B) specifies that this rule applies to a “lawyer who approves the use of a communication about the lawyer or the lawyer’s firm” and extends to communications by “electronic media, including radio, television and microwave transmission.”

The DRs do not include a direct counterpart to MR 7.2(a), though the permissibility of lawyers’ advertising through public media is implicit in the rule.

Similar to MR 7.2(c)(1), DR 2-101(F) permits payment to others “for disseminating or assisting in the dissemination of communications about the lawyer or the lawyer’s firm only to the extent permitted by DR 2-103.” DR 2-103(A) explicitly permits payment for the cost of advertisements. It also provides that a lawyer may not “otherwise compensate or give anything of value to a person or organization” to recommend or promote the lawyer’s services, similar to MR 7.2(c). Additionally, DR 2-103(B) provides that “[a] lawyer shall not request or knowingly permit a person or organization to promote, recommend or secure employment by a client through any means that involves false or misleading communications about the lawyer or the lawyer’s firm.” If the lawyer learns that representation of a client was secured via false or misleading statements, the lawyer must inform the client.

DR 2-103(C) permits a lawyer or law firm’s recommendation by “prepaid legal services plan, lawyer referral service, legal service organization,” or similar plan so long as the operation of such plan does not result in the lawyer’s violation of applicable disciplinary rules and statutes. Further, the client must be the recipient of legal services, not the legal services plan, and the plan cannot impose any “condition or restriction on the exercise of any participating lawyer’s professional judgment on behalf of the client.” The legal services plan itself cannot make any communications in violation of DR 2-101, 2-103, or 2-104.

There is no direct counterpart to MR 7.2(d) in the DRs, but DR 2-101(E) requires that “[a]n unsolicited communication about a lawyer or the lawyer’s firm in which services are being offered must clearly identify the name and post office box or street address of the office of the lawyer or law firm whose services are being offered.”

7.2:102      Model Code Comparison

MC DR 2-101(B) explicitly permits lawyers’ advertising, which is merely implicit in the DRs. MC DR 2-101(D) requires the retention of recordings of communications over public television or radio, but it does not specify the length of retention. MC DR 2-103(B) provides for lawyers’ payment of “usual and reasonable fees . . . charged by” legal aid and other legal service organizations, but does not detail additional requirements, as does DR 2-103(C). MC DR 2-101(I) prohibits compensation “in anticipation of or in return for professional publicity in a news item,” for which there is no direct counterpart in the DRs.

7.2:200   Permissible Forms of Lawyer Advertising

Primary OR References: DR 2-101
Background References: ABA Model Rule 7.2(a), Other Jurisdictions
Commentary: ABA/BNA § 81.201, Wolfram § 14.2
OR Commentary: EOL ch 3

As noted above in 7.1:220, the DRs provide some detail about permissible representations in communications about a lawyer or law firm. DR 2-101(A)(1) through (3) essentially permit the same advertising as is permitted under the ABA Model Rules. For example, an advertisement cannot state or imply that the lawyer or his or her firm “specializes in, concentrates a practice in, limits a practice to, is experienced in, is presently handling or is qualified to handle matters or areas of law if the statement or implication is false or misleading.” DR 2-101(A)(4). Endorsements and testimonials are also permitted so long as the communication clearly states that any result portrayed “does not necessarily indicate that similar results can be obtained for other clients.” DR 2-101(A)(6).

7.2:300   Retaining Copy of Advertising Material

Primary OR References: DR 2-101(B)
Background References: ABA Model Rule 7.2(b), Other Jurisdictions
Commentary: ABA/BNA § 81:401, Wolfram § 14.2
OR Commentary: EOL § 3.13

DR 2-101(B) requires that a lawyer who approves the use of a communication about the lawyer or the lawyer’s law firm retain records concerning the communication for two years after its dissemination. The records must include a copy of any written or electronic communication or recording of any communication by use of electronic media, as well as a record of when and where the communication was used.

7.2:400   Paying to Have Services Recommended

Primary OR References: DR 2-103(C)
Background References: ABA Model Rule 7.2(c), Other Jurisdictions
Commentary: ABA/BNA § 81.301, Wolfram § 14.2
OR Commentary:

DR 1-102(A)(1) prohibits lawyers from doing indirectly what they are precluded from doing directly. When read in conjunction with the prohibition of lawyer solicitation at DR 2-104, this rule precludes lawyers from using nonlawyer intermediaries to solicit business through means prohibited by DR 2-104.

Moreover, DR 2-103(A) generally precludes a lawyer from compensating others to solicit clients on the lawyer’s behalf. However, the sale of a legal practice in accordance with DR 2-111 is exempted from this prohibition, as are lawyer referral services and prepaid legal plans that meet the requirements under DR 2-103(C).

7.2:500   Identification of a Responsible Lawyer

Primary OR References:
Background References: ABA Model Rule 7.2(d), Other Jurisdictions
Commentary: ABA/BNA §§ 81.201, 81:301, Wolfram § 14.2
OR Commentary:

There is no counterpart to MR 7.2(d) in the DRs. However, as noted above in 7.2:101, DR 2-101(E) requires that “[a]n unsolicited communication about a lawyer or the lawyer’s firm in which services are being offered must clearly identify the name and post office box or street address of the office of the lawyer or law firm whose services are being offered.”

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 2-104, 2-101
Background References: ABA Model Rule 7.3, Other Jurisdictions
Commentary:
OR Commentary: EOL § 3.23

7.3:101      Model Rule Comparison

Just as MR 7.3 does, DR 2-104(A) specifies family members and former clients as parties whom a lawyer may permissibly contact for the purposes of obtaining employment. DR 2-104(A) extends the list of parties a lawyer may contact to close friends and those whom “the lawyer reasonably believes to be a client.” Contact with a prospective client is also permissible when made under the auspices of a public or charitable legal services organization or of a “bona fide political, social, civic, fraternal, employee, or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.” DR 2-104(A)(3).

DR 2-104 does not include the express prohibitions articulated in MR 7.3(b).

DR 2-104(B) explains that, for the purposes of this rule, “personal contact” means in-person or telephone contact, as well as “real time interactive communications such as conversations in internet chat groups and conference areas and video conferencing.” “Personal contact” does not include direct mail advertising or electronic mail. These methods of contact are nonetheless subject to the other requirements of DR 2-101.

DR 2-104 does not speak to prepaid or group legal service plans. But see DR 2-103(C), as described in 5.4:510.

7.3:102      Model Code Comparison

DR 2-104(A)(1)’s language echoes that of MC DR 2-104(A)(1). However, unlike its ABA Model Code counterpart, nothing in DR 2-104(A)(1) prohibits a lawyer from contacting a present or former client, even if the work sought is unrelated to services currently or previously provided to the client.

MC DR 2-104 addresses the following situations, which are not addressed in DR 2-104: employment that results from a lawyer’s participation in educational activities, a lawyer’s decision to speak publicly or write for a legal publication, and contact with class members in a class action. But see OSB Legal Ethics Op Nos 1991-70, 1991-3 (lawyer efforts at public education in most circumstances do not constitute solicitation of client), 1991-10 (permitting lawyers to engage in related business but precluding use of such arrangements to solicit legal clients).

7.3:200   Prohibition of For-Profit In-Person Solicitation

Primary OR References: DR 2-104(A)
Background References: ABA Model Rule 7.3(a), Other Jurisdictions
Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5
OR Commentary: EOL §§ 3.20-.25, 16.29

DR 2-104 prohibits a lawyer’s in-person contact “for the purpose of obtaining professional employment,” except in certain enumerated circumstances discussed above in 7.3:101. To “initiate” personal contact with a prospective client in this context, a lawyer must act intentionally to violate this rule. See In re Blaylock, 328 Or 409, 978 P2d 381 (1999) (because attorney was under impression that prospective client had sought his advice through intermediary, there was no violation).

Lawyers who engage in prohibited forms of solicitation face not only disciplinary sanctions but statutory sanctions as well. See, e.g., ORS 9.510 (prohibits in-person but not written solicitation of personal injury business by attorneys), 9.527 (provides for disbarment, suspension, or reprimand if attorney willfully violates ORS 9.510), 9.520 (prohibits attorney’s acceptance and prosecution of solicited claims). But see OSB Legal Ethics Op No 1991-106 (attorney purchasing law practice may not require seller to solicit clients for purchaser). For application of similar prohibitions to nonlawyers, see, e.g., ORS 9.500 and 9.990. See also OSB Legal Ethics Op No 1991-127 (evaluation of scope of ORS 9.510). Lawyer solicitation is also subject to Oregon’s unlawful trade practices statutes. See ORS 646.605-.656.

7.3:210      Solicitation by Non-Profit Public Interest Organization

DR 2-104 permits a lawyer to initiate personal contact with a prospective client in certain circumstances, including when the solicitation occurs under the auspices of a public or charitable legal services organization or of a “bona fide political, social, civic, fraternal, employee, or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.” DR 2-104(A)(3).

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

In leaving a firm, a lawyer’s first duty is to his or her clients. See In re Smith, 315 Or 260, 264, 843 P2d 449 (1992); OSB Legal Ethics Op No 1991-70. The lawyer must honor this fiduciary duty by ensuring that work for clients continues to be handled in a timely and competent manner during any transition. Depending on the circumstances of a particular representation, this may require advance notification to clients of an attorney’s intention to depart so that the clients affected can make a timely decision on whether to keep their work at the “old firm,” move their work to the departing lawyer, or retain completely new counsel. See OSB Legal Ethics Op No 1991-70.

A lawyer owes a duty of loyalty to his or her current employer or partners as well. See In re Smith, 315 Or at 266. Depending on the circumstances of a particular representation, a lawyer may breach that duty to the attorney’s current employer or partners if the lawyer attempts to surreptitiously recruit the firm’s clients while the lawyer is still being paid by that firm. Id.; OSB Legal Ethics Op No 1991-70. If the lawyer’s conduct amounts to “dishonesty, fraud, deceit or misrepresentation,” then the lawyer may be disciplined under DR 1-102(A)(3). See In re Smith, 315 Or at 262-67 (lawyer violated DR 1-102(A)(3) when, in two and one-half months before his departure from firm, he induced 31 clients who met with him at firm to sign individual retainer agreements and did not open any files for those clients until he had left to form his own firm). Similarly, a lawyer may not misrepresent his or her status or intentions to the present employer or partners. See OSB Legal Ethics Op No 1991-70.

Once a lawyer has actually left a firm, DR 2-104(A)(1) contains an express exception to the in-person solicitation rule permitting the lawyer to contact clients the lawyer represented at the former firm to solicit their business. Any related notices must comply with the rules governing advertising found at DR 2-101 to 2-104. See OSB Legal Ethics Op No 1991-127 (discussing rules applicable to written advertising materials); see also In re Smith, 315 Or at 263-64 (letters sent to third parties announcing new practice contained misrepresentations in violation of DR 1-102(A)(3)).

If a client does decide to have the departing lawyer continue handling the client’s work, then (assuming that the firm does not have a lien for unpaid fees) the “old firm” must relinquish the client’s file and other property to the departing lawyer upon the client’s direction. See DR 2-110(A)(2) (client files), 9-101(C)(2)-(4) (client property). The “old firm’s” ability to charge the client for photocopy and associated charges for reproducing file materials will depend largely on the nature of the materials involved and the particulars of the fee agreement between the “old firm” and the client. See generally OSB Legal Ethics Op No 1991-125 (dealing specifically with photocopy charges for client files on termination of representation).

7.3:300   Regulation of Written and Recorded Solicitation

Primary OR References: DR 2-104, 2-101
Background References: ABA Model Rule 7.3(b), Other Jurisdictions
Commentary: ABA/BNA § 81:2001, Wolfram § 14.2.5
OR Commentary: EOL §§ 3.14, 3.23

(A) Written Solicitation

DR 2-104 does not cover direct mail or advertising or electronic mail, but such written advertising is subject to the rules of DR 2-101: it may not be false or misleading and must comply with the time, place, and manner restrictions imposed on lawyer advertising.

Both direct and electronic mail advertising must conform to DR 2-101(H), which applies to any “unsolicited communication . . . to a prospective client who is known to be in need of legal services with respect to a particular matter and who is not a close friend, relative, current client, or one with whom the lawyer has a current or prior professional relationship.” See OSB Legal Ethics Op No 1991-127. DR 2-101(H) increases for direct and electronic mail advertisements the labeling requirements set forth for advertisements generally. Specifically, written communications must be identified on the envelope and on the bottom of each page by the word “‘Advertisement,’ printed in at least fourteen point bold type which shall be larger and darker than the type used for the address on the envelope and in the text of the written communication.” DR 2-101(H). Communications sent via electronic mail must include the word “‘Advertisement’ in type that is larger and darker than the type used for the text of the communication, if possible, or if that is not possible, then set off from the text at the beginning and end of the communication.” Id. These labeling requirements do not apply to communications with current or former clients.

(B) Recorded Solicitation

As noted above in 7.3:101, DR 2-104(B) defines “personal contact” as including telephone contact with an individual or entity. However, it is unclear whether “telephone contact” includes calls that are dialed automatically and provide a recorded message to the listener. MR 7.3 explicitly states these contacts will be treated as the equivalent of written communications. Even if that interpretation were rejected by Oregon courts, the use of automatic dialing and announcing devices by lawyers may be constitutionally protected. See Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993) (striking down on constitutional grounds statute prohibiting use of such devices to solicit customers for chimney sweep service).

7.3:400   Disclaimers for Written and Recorded Solicitation [see 7.3:300(A)]

Primary OR References:
Background References: ABA Model Rule 7.3(c), Other Jurisdictions
Commentary: ABA/BNA § 81:401, Wolfram § 14.2.5
OR Commentary:

7.3:500   Solicitation by Prepaid and Group Legal Services Plans [see also 5.4:510]

Primary OR References: DR 2-103(C)
Background References: ABA Model Rule 7.3(d), Other Jurisdictions
Commentary: ABA/BNA § 81:2501, Wolfram § 16.5.5
OR Commentary: EOL § 3.25

The DRs take a liberal approach to prepaid and group legal services plans, consistent with MR 7.3(d). DR 2-103(C) provides that a lawyer or law firm may under some circumstances be “recommended, employed or paid by, or cooperate with, a prepaid legal services plan, lawyer referral service, legal service organization or other similar plan, service or organization.” However, such arrangements are permissible only when the arrangement satisfies certain requirements articulated by DR 2-103(C). See OSB Legal Ethics Op No 1991-79 (lawyer may enter into prepaid legal services plan sponsored by church and initiate personal contact with potential clients concerning issues of interest to church).

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 2-101(A)(4)
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary:
OR Commentary: EOL § 3.6

7.4:101      Model Rule Comparison

The DRs are more general than MR 7.4 on this count. DR 2-101(A)(4) prohibits a lawyer from making or causing to be made any form of communication that “[s]tates or implies that the lawyer or the lawyer’s firm specializes in, concentrates a practice in, limits a practice to, is experienced in, is presently handling or is qualified to handle matters or areas of law if the statement or implication is false or misleading.”

7.4:102      Model Code Comparison

MC DR 2-105(A) generally prohibits a lawyer from holding himself or herself out publicly as a specialist, subject to the following exceptions. A lawyer admitted to practice before the United States Patent and Trademark Office may indicate as much on letterhead and office signs. Lawyers may publicly disclose that their practices are limited to one or more fields of law but “shall do so by using designations and definitions authorized and approved by” an agency authorized in the lawyer’s jurisdiction. MC DR 2-105(A)(2). A lawyer who is certified as a specialist in a given field of law may indicate as much publicly, “but only in accordance with the rules prescribed by [the certifying] authority.” MC DR 2-105(A)(3).

7.4:200   Regulation of Claims of Certification and Specialization

Primary OR References: DR 2-101(A)(4)
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary: ABA/BNA §§ 21:4001, 81:501, Wolfram § 14.2.4
OR Commentary:

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 2-102
Background References: ABA Model Rule 7.5, Other Jurisdictions
Commentary:
OR Commentary: EOL § 3.16

7.5:101      Model Rule Comparison

DR 2-102(A) is substantially the same as the first sentence of MR 7.5(a), except the DRs are stated in the affirmative. The second part of MR 7.5(a) is tracked by DR 2-102(C)(2).

MR 7.5(b) is almost identical to DR 2-102(F).

MR 7.5(c) specifies its application to lawyers holding public office but, like its ABA Model Code counterpart, does not specify what constitutes a “substantial period.” As noted in the discussion below in 7.5:102, DR 2-102(D) does not mention public office, but requires an absent lawyer’s return to the firm within one year to have been contemplated before the lawyer’s absence.

The substance of MR 7.5(d) is similar to DR 2-102(E).

7.5:102      Model Code Comparison

MC DR 2-102(A) prohibits use of professional announcement cards, letterheads, etc., unless they are “in dignified form.” Oregon’s DR 2-102(A) expressly permits the use of announcement cards, office signs, letterheads, telephone directory listings, electronic directory listings, etc., “so long as the information contained therein complies with DR 2-101 and other applicable disciplinary rules.”

MC DR 2-102(B) prohibits a private practitioner from using a trade name; use of trade names is expressly permitted by DR 2-102(C)(2), provided such name “does not state or imply a connection with a governmental agency or with a public or charitable legal services organization and is not otherwise in violation of DR 2-101.” This qualification tracks the language of MR 7.5.

Neither rule permits names that are misleading, and both allow a firm name to use the name or names of a retired or deceased member of the firm “or [that of] a predecessor law firm in a continuing line of succession.” DR 2-102(C)(3).

DR 2-102(F) is substantially similar to MC DR 2-102(D) regarding multijurisdictional partnerships, although its wording tracks MR 7.5(b) almost exactly.

MC DR 2-102(B) specifically addressed judicial, legislative, or other public office in prohibiting use of a lawyer’s name “during any significant period in which [that lawyer] is not actively and regularly practicing law as a member of the firm.” DR 2-102(D) does not speak to public office specifically but otherwise echoes its ABA Model Code counterpart. Further, it specifies that it must have been contemplated, before the lawyer’s absence from the firm, that he or she would return to the firm within one year. This principle is also covered by the broader rule at DR 2-102(E), which simply prohibits lawyers from holding themselves out as practicing law with a firm when they are not, in fact, members of that firm.

7.5:200   Firm Names and Trade Names

Primary OR References: DR 2-102
Background References: ABA Model Rule 7.5(a), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4
OR Commentary: EOL §§ 3.16-.18

The principal objective of the rules that govern firm names and letterhead is to preclude misleading firm names and misleading characterization of the relationships among lawyers. Thus DR 2-102(C)(1) expressly precludes lawyers in private practice from practicing “under a name that is misleading as to the identity of the lawyer or lawyers practicing under such name or under a name that contains names other than those lawyers in the firm.” See, e.g., In re Shannon/Johnson, 292 Or 339, 342-43, 638 P2d 482 (1982). Although the DRs do not directly address the question, OSB Legal Ethics Op No 1991-65 expressly permits listing nonlawyer employees on lawyers’ letterhead so long as the person’s status is clear and the listing is neither false nor misleading.

The Oregon Formal Ethics Opinions provide substantial guidance regarding when a firm name is misleading. See, e.g., OSB Legal Ethics Op No 1991-109 (associated firms may identify themselves as “Associated Offices” when their relationship is ongoing).

DR 2-102 also contains several more specific directives concerning firm names and relationships. DR 2-102(B) governs “Of Counsel” and “General Counsel” designations. It permits the designation of “Of Counsel” on a letterhead if the lawyer so designated “has a continuing professional relationship with a lawyer or law firm.” DR 2-102(B); see also DR 10-101(A), (C); OSB Legal Ethics Op No 1999-155 (attorney designated as “Of Counsel” for law firm is considered member of firm for conflict-of-interest purposes). DR 2-102(B) further permits a lawyer to be termed “General Counsel” or some other similar professional reference on a client’s stationery if the lawyer or lawyer’s firm “devotes a substantial amount of professional time in the representation of the client.” See OSB Legal Ethics Op Nos 1998-153 (attorneys employed to defend insureds’ liability claims may not hold themselves out in letterhead as practicing in law firm without disclosing their status as employees of insurer), 1991-109 (quoting ABA Formal Ethics Op 84-351 (1984)).

Despite long-standing opposition to the use of trade names by lawyers, DR 2-102(C)(2), which is virtually identical to MR 7.5(a), permits the use of nonmisleading trade names in private practice “if the name does not state or imply a connection with a governmental agency or with a public or charitable legal services organization and is not otherwise in violation of DR 2-102.” See OSB Legal Ethics Op No 1991-101 (discussing use of trade name “Family Mediation Center”).

A law firm may use in its name the names of retired, retiring, or deceased members of the firm or that of “a predecessor law firm in a continuing line of succession.” DR 2-102(C)(3). Furthermore, a lawyer’s or law firm’s letterhead may include the names and dates of predecessor firms in a continuing line of succession and may designate the firm or a lawyer practicing in the firm as a professional corporation. DR 2-102(C)(2).

7.5:300   Law Firms with Offices in More Than One Jurisdiction

Primary OR References: DR 2-102(F)
Background References: ABA Model Rule 7.5(b), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 15.4
OR Commentary: EOL § 3.19

DR 2-102(F) permits multijurisdictional firms to use the same name in each jurisdiction. It requires, however, that identification of the lawyers in an office indicate the jurisdictional limitations of each lawyer not licensed to practice in the jurisdiction where the office is located. See OSB Legal Ethics Op No 1991-103 (multistate law firm may not falsely imply that someone is member of OSB).

7.5:400   Use of the Name of a Public Official

Primary OR References: DR 2-102(D)
Background References: ABA Model Rule 7.5(c), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, Wolfram § 14.2.4
OR Commentary: EOL § 3.17

The DRs do not specifically address the use of the name of a public official in a law firm name. DR 2-102(D) addresses this issue indirectly by precluding a lawyer from allowing his or her name to remain in the name of a law firm or to be used by the firm if the lawyer is not actively and regularly engaged in the practice of law as a member of the firm. Similarly, the rule precludes other members of the firm from using the absent lawyer’s name in their letterhead or professional notices. These limitations do not apply, however, to absences of one year or less “if it was contemplated that the lawyer would return to active and regular practice with the firm within one year.” DR 2-102(D).

7.5:500   Misleading Designation as Partnership, etc.

Primary OR References: DR 2-102(E)
Background References: ABA Model Rule 7.5(d), Other Jurisdictions
Commentary: ABA/BNA § 81:3001, ALI-LGL § 58, Wolfram § 14.2.4
OR Commentary: EOL § 3.17

Misleading characterizations of office-sharing or informal associations are prohibited by DR 2-102(E), which precludes lawyers from holding themselves out as practicing in a law firm unless the lawyers are actually members of a firm. See OSB Legal Ethics Op No 1991-12 (precludes office-sharing lawyers from practicing under name “A, B & C, Attorneys at Law” or from holding themselves out as “associates” or “of counsel” with one another). But see OSB Legal Ethics Op No 1991-65 (permissible to list nonlawyer employees on lawyer’s letterhead, together with designation of positions held, so long as practice in given instance is neither false nor misleading).