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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1   Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 1-101, 1-102(A)(4)
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary:
OR Commentary:

8.1:101      Model Rule Comparison

The DRs separately address attorneys’ responsibilities regarding admission to the Bar and the duty to cooperate with the Bar.

(A) Application for Admission to the Bar

DR 1-101(A) provides that a “lawyer is subject to discipline if the lawyer has made a materially false statement in, or if the lawyer has deliberately failed to disclose a material fact requested in connection with, the lawyer’s application for admission to the bar.” Unlike MR 8.1, the DR does not speak to the lawyer’s knowledge of another’s misapprehension; rather, it focuses on “material fact[s].”

DR 1-101(B) provides that a “lawyer shall not further the application for admission to the bar of another person known to the lawyer to be unqualified in respect to character, education, or other relevant attribute.” Also, DR 1-102(A)(4) provides that a lawyer shall not engage in “conduct that is prejudicial to the administration of justice.” MR 8.1(b) speaks more strictly to the same issue by affirmatively requiring the lawyer’s cooperative response to the Bar’s lawful demands for information regarding admissions.

(B) Duty to Cooperate

DR 1-103(B) requires a lawyer to disclose “unprivileged knowledge or evidence concerning another lawyer or a judge . . . upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.” DR 1-103(C) requires a lawyer who is the subject of a disciplinary investigation to “respond fully and truthfully to inquiries from and comply with reasonable requests” of authorized parties. DR 1-103(F) provides that a “lawyer who is the subject of a complaint or referral to the State Lawyers Assistance Committee shall, subject to the exercise of any applicable right or privilege, cooperate with the committee and its designees.” DR 1-103(F) enumerates examples of a lawyer’s required cooperation, including responding to inquiries, furnishing relevant documents, participating in interviews with the committee and its designees, and participating in and complying with a remedial program established by the committee or its designees.

DR 1-103(D) requires a lawyer who is admitted to the OSB to, within 30 days of receiving notice of her or his admission, “report in writing to the disciplinary counsel” of the OSB the existence of disciplinary proceedings undertaken against that lawyer in “any other jurisdiction.”

8.1:102      Model Code Comparison

DR 1-101 is identical to its ABA Model Code counterpart. DR 1-102(A)(4) is identical to MC DR 1-102(A)(4).

DR 1-103(A) and (B) are identical to their ABA Model Code counterparts, but the ABA Model Code does not include provisions similar to the rest of DR 1-103.

8.1:200   Bar Admission

Primary OR References: DR 1-101, 1-102(A)(4)
Background References: ABA Model Rule 8.1, Other Jurisdictions
Commentary: ABA/BNA §§ 21:101, 10l:1, ALI-LGL § 2, Wolfram §§ 15.2, 15.3
OR Commentary:

The specifics of admission to and governance of the OSB are described in the Supreme Court of the State of Oregon Rules Regulating Admission to Practice Law in Oregon (Rules Regulating Admission) (Jan. 2002), a link to which is available at the OSB Web site, www.osbar.org.

8.1:210      Bar Admission Agency

Rules Regulating Admission § 2.10 provides that the “Board of Bar Examiners shall act for the Supreme Court in the evaluation of an applicant’s qualifications for admission to practice law in the State of Oregon.” The Board of Bar Examiners (Board) consists of “at least 14 members appointed by the Supreme Court.” Id. § 2.05(1)(a). At least two of the Board members must not be members of the OSB and are appointed by the Oregon Supreme Court for a one-year term. These members “shall have no responsibility for preparing or grading examination papers.” Id. § 2.05(1)(b). Four of the examiners are appointed for three-year terms; these appointees must all be active members of the OSB. Id. § 2.05(1)(a). Generally speaking, law school faculty and members of a law school’s governing body are ineligible from becoming or remaining a member of the Board. Id. § 2.05(1)(c).

The Board appoints, with the Oregon Supreme Court’s approval, a chair and vice chair from among its members, and these officers serve for one-year terms. The Board also appoints an executive director, who need not be an active member of the OSB and who serves at the Board’s pleasure. Id. § 2.05(2), (3). The Board’s current executive director is Marlyce Gholston, who can be contacted by e-mail at mgholston@osbar.org or by telephone at (503) 620-0222, extension 410. The Board’s address is 5200 SW Meadows Road, PO Box 1689, Lake Oswego, Oregon 97035-0889.

The Board is restricted from disclosing any of “its records, work product or proceedings in carrying out [its responsibilities] for the Supreme Court except the Board may release an applicant’s admissions file to: (1) a special investigator appointed under Rules [Regulating Admission §§ ] 9.15 to 9.20; (2) the Oregon State Bar’s Disciplinary Counsel when an applicant seeks Supreme Court review of an adverse admissions recommendation; (3) Counsel appointed by the Board when an applicant initiates civil proceedings against the Board in connection with the applicant’s application; or (4) admissions authorities in other jurisdictions which guarantee the confidentiality of admissions materials to the same extent as required under Oregon law.” Id. § 2.15.

8.1:220      Bar Admission Requirements

(A) Basic Requirements

Rules Regulating Admission § 3.05 identifies basic qualifications required of a Bar applicant. Aside from being at least age 18 at the time of admission, the applicant must meet one of the following requirements:

(1) The applicant is a graduate of a law school approved by the American Bar Association, earning a Juris Doctor Degree.

(2) The applicant is a graduate of a law school in the United States, earning a Juris Doctor Degree, and

(a) has been admitted to practice before the highest tribunal of another state, the District of Columbia, or federal territory, where the requirements for admission are substantially equivalent to those of this state; and

(b) has been actively, substantially and continuously engaged in the practice of law for at least three of the five years immediately preceding the taking of the examination.

(3) The applicant is admitted to practice before the highest tribunal of a foreign country where the common law of England exists as a basis of its jurisprudence. In such case, the applicant shall have the burden of proving:

(a) that the requirements for admission to practice are substantially equivalent to those of this state; and

(b) that the applicant is a graduate of a law school equivalent to a law school approved by the American Bar Association.”

Id.

Residency is not required for admission to the Oregon State Bar. Rules Regulating Admission § 8.15(1).

(B) Ineligible Applicants

Rules Regulating Admission § 3.10 prohibits from admission to the Bar an applicant who has been “convicted of a crime, the commission of which would have led to disbarment in all the circumstances present, had the person been an Oregon attorney at the time of conviction.”

An attorney is also ineligible for admission if “not in good standing for disciplinary reasons in any other jurisdiction in which the attorney was licensed to practice” such that the attorney was either “disbarred or resigned in lieu of disciplinary action.” Rules Regulating Admission § 3.15(1)(a). Such attorney may still apply for admission to the OSB “if the attorney can show that the attorney’s conduct that led to the disbarment or resignation would not have led to disbarment in Oregon.” Id. § 3.15(2). If the attorney was not disbarred and did not resign in lieu of disciplinary action but is not in good standing due to disciplinary reasons, that attorney is still ineligible for admission to the OSB “until the attorney is eligible to apply for reinstatement or readmission after the disciplinary action in the other jurisdiction.” Id. § 3.15(1)(b).

(C) Applicant’s Moral Character or Fitness

Rules Regulating Admission § 6.05(1) authorizes the Board to investigate and procure testimony “for the purpose of determining whether applicants possess the good moral character and fitness to practice law prescribed by ORS 9.220(2) and these Rules.” Rules Regulating Admission § 9 describes in full the procedural framework and responsibilities for evidentiary hearings for applicants whose moral character or fitness to practice law is at issue.

A Bar applicant can be “denied admission for refusing to provide the Board with information material to the Board’s inquiry” into the applicant’s character and fitness. Id. § 6.05(3).

Effective January 1, 2002, Oregon, Idaho, and Washington share tri-state reciprocity. The rules allow Idaho and Washington admission to the OSB without having to take and pass the Oregon Bar Examination, provided those lawyers meet certain requirements, including active, substantial, and continuous law practice for the three years immediately preceding application for reciprocity admission.

8.1:230      Admission on Motion

Admission on motion may be allowed to Washington and Idaho licensed attorneys. See Bar Admission Rule 15.05.

8.1:240      Admission Pro Hac Vice [see also 5.5:230]

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

8.1:300   False Statements of Material Fact in Connection with Admission or Discipline

Primary OR References: DR 1-103, 1-103(B)
Background References: ABA Model Rule 8.1(a), Other Jurisdictions
Commentary: ABA/BNA §§ 21:301, 101:201, Wolfram § 15.3.1
OR Commentary: EOL §§ 17.10-.17

(A) Bar Admission

DR 1-101(A) provides: “A lawyer is subject to discipline if the lawyer has made a materially false statement in, or if the lawyer has deliberately failed to disclose a material fact requested in connection with, the lawyer’s application for admission to the bar.” As with all mandatory disclosure provisions in the DRs, the scope of DR 1-101(A)’s duty of candor on Bar applicants is limited by the Fifth Amendment.

DR 1-101(B) provides that a “lawyer shall not further the application for admission to the bar of another person known to the lawyer to be unqualified in respect to character, education, or other relevant attribute.” DR 1-101(B) does not require an attorney to affirmatively report unprivileged knowledge of a Bar applicant’s misconduct. Rather, the rule simply admonishes attorneys not to further an application of a person the attorney knows to be unqualified. While the term “further” is not defined in the DRs or elsewhere, it apparently refers to action specifically intended to advance the application, such as vouching for an applicant’s moral character. Gerard E. Lynch,The Lawyer as Informer,” 1986 Duke LJ 491, 500 (1986).

(B) Discipline

DR 1-103(C) requires an attorney under investigation to respond fully and truthfully to inquiries and requests from Bar disciplinary authorities, “subject only to the exercise of any applicable right or privilege.” This rule was enacted in response to criticism that the disciplinary system was “slow and cumbersome.” In re Glass, 308 Or 297, 305, 779 P2d 612 (1989), petition for reconsideration denied 309 Or 218 (1990).

The Oregon Supreme Court has stressed that violations of DR 1-103(C) are serious. See, e.g., In re Glass, 308 Or at 305 (“We do not view a violation of DR 1-103(C) lightly . . . . We intend that it be followed and that violations be sanctioned.”); see also In re Arbuckle, 308 Or 135, 141, 775 P2d 832 (1989). The failure to cooperate is punishable even though the underlying charges are dismissed. In re Hereford, 306 Or 69, 74, 756 P2d 30 (1988).

Under DR 1-103(F), a lawyer who is the subject of a complaint or referral to the State Lawyers Assistance Committee (SLAC) must cooperate with the SLAC, subject to the Fifth Amendment privilege. Cooperation includes responding to the SLAC’s inquiries, furnishing relevant documents, and participating in interviews with the SLAC. See In re Chandler, 306 Or 422, 432, 760 P2d 243 (1988) (attorney suspended for two years for, among other things, violating DR 1-103(F)).

DR 1-103(B) provides: “A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.”

8.1:400   Duty to Volunteer Information to Correct a Misapprehension

Primary OR References:
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:
OR Commentary:

There is no counterpart to this rule in the DRs.

8.1:410      Protecting Client Confidential Information

If an attorney is requested to “respond to allegations concerning the lawyer’s representation of [a] client,” the attorney may, but need not, reveal the confidences and secrets of that client necessary to provide a response. DR 4-101(C)(4); OSB Legal Ethics Op No 1991-104. An attorney who declines to respond on the ground of attorney-client privilege is still subject to discipline if the failure to respond means that charges go unrefuted. In re Robeson, 293 Or 610, 624-31, 652 P2d 336 (1982).

Because all letters of response and accompanying documents submitted to the Bar are public records under Oregon State Bar Board of Governors Policy 9.202, an attorney should carefully limit disclosure to that which is necessary to respond to the complaint. OSB Legal Ethics Op No 1991-104.

8.1:500   Application of Rule 8.1 to Reinstatement Proceedings

Primary OR References:
Background References: ABA Model Rule 8.1(b), Other Jurisdictions
Commentary:
OR Commentary:

8.2   Rule 8.2 Judicial and Legal Officials

8.2:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 8-102
Background References: ABA Model Rule 8.2, Other Jurisdictions
Commentary:
OR Commentary: EOL § 18.36

8.2:101      Model Rule Comparison

DR 8-102(A) provides that a lawyer “shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office.” See, e.g., OSB Legal Ethics Op Nos 1991-64 (attorney may express opinions to newspaper concerning competence of judge before whom attorney has never appeared so long as attorney does not knowingly make false statements concerning judge), 1991-38 (attorney who wishes to campaign on behalf of various candidates for judicial or other elected office or to provide written endorsements for such candidates may do so as long as attorney does not knowingly make false statements of fact). Unlike MR 8.2, there is no constraint concerning “reckless disregard as to [a statement’s] truth or falsity” in DR 8-102(A); rather, the standard is “knowingly mak[ing] false statements.”

DR 8-102(B) provides that a “lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.”

DR 8-103 is substantially identical to MR 8.2(b).

8.2:102      Model Code Comparison

The relevant DRs are identical to those in the ABA Model Code.

8.2:200   False Statements About Judges or Other Legal Officials

Primary OR References:
Background References: ABA Model Rule 8.2(a), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram § 11.3.2
OR Commentary:

8.2:300   Lawyer Candidates for Judicial Office

Primary OR References: DR 8-103
Background References: ABA Model Rule 8.2(b), Other Jurisdictions
Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram § 17.2
OR Commentary:

An attorney who is a candidate for judicial office may campaign therefore so long as the attorney complies with Canon 5 of the ABA Model Code of Judicial Conduct. See OSB Legal Ethics Op No 1991-36.

8.3   Rule 8.3 Reporting Professional Misconduct

8.3:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 1-103(A), (E)
Background References: ABA Model Rule 8.3, Other Jurisdictions
Commentary:
OR Commentary:

8.3:101      Model Rule Comparison

DR 1-103(A) and (E) are substantively similar to MR 8.3(a) and (c).

DR 1-103(A) requires a lawyer who has unprivileged knowledge “that another lawyer has committed a violation of DR 1-102 that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform Oregon State Bar Disciplinary Counsel.” Exempt from this requirement of disclosure are lawyers who obtain such knowledge or evidence while “[a]cting as a member, investigator, agent, employee or as a designee” of the State Lawyers Assistance Committee or Professional Liability Fund or while participating in the loss prevention programs of the Professional Liability Fund. DR 1-103(E)(1).

The DRs do not include a counterpart to MR 8.3(b).

8.3:102      Model Code Comparison

DR 1-103(A) and (E) conceptually track MR 8.3(a). There is no counterpart to these in the ABA Model Code.

8.3:200   Mandatory Duty to Report Serious Misconduct

Primary OR References: DR 1-103(A), (E)
Background References: ABA Model Rule 8.3(a), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
OR Commentary: EOL §§ 17.3-.8

(A) Knowledge, Not Suspicion

A lawyer is required to report another lawyer’s misconduct whenever he or she “possess[es] knowledge” of such a violation. DR 1-103(A). Suspicion of wrongdoing is not sufficient to create a duty to report. OSB Legal Ethics Op No 1991-95.

(B) Unprivileged Information

A lawyer must report only information that is “not protected by DR 4-101 or ORS 9.460(3).” DR 1-103(A). DR 4-101 requires the attorney to maintain the confidentiality of all matters covered by the attorney-client privilege and all client secrets; ORS 9.460(3) requires an attorney to “[m]aintain the confidences and secrets of the attorney’s clients consistent with the rules of professional conduct established pursuant to ORS 9.490.” DR 1-103(A) was amended in 1990 to clearly bring client secrets within the privilege exception, thereby expressly and intentionally rejecting In re Himmel, 533 NE2d 790 (Ill 1988) (attorney suspended for one year based on failure to report another attorney’s misappropriation of client funds, which suspended attorney was retained to recover, despite fact that attorney did not report other attorney to the bar because client specifically directed him not to do so). See OSB Legal Ethics Op No 1991-95 (“an attorney may not report a DR violation if the source of knowledge of the DR violation is a client’s confidence or secret”).

By its terms, DR 1-103(A) does not require immediate reporting. Presumably, an attorney who is concerned about the possible adverse effects to a client from reporting opposing counsel in mid-matter could comply with the rule by waiting to report until the matter is completed.

(C) Concerning Another Lawyer

DR 1-103(A) requires an attorney to report the misconduct of another attorney, and thus expressly exempts attorneys from the requirement that they report their own misconduct. However, DR 1-103(A) contains no exception regarding the duty to report the misconduct of another lawyer in an attorney’s law firm, so long as the co-worker’s misconduct is not covered by a privilege (including the Fifth Amendment privilege against self-incrimination).

(D) Raising a Substantial Question

DR 1-103(A) requires an attorney to report misconduct “that raises a substantial question as to [another] lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The “substantial question” standard, borrowed from MR 8.3, was added to DR 1-103(A) in the June 1986 amendment, limiting the rule’s former requirement that lawyers report all violations of any disciplinary rule.

There are diverging opinions regarding what specific conduct meets the “substantial question” standard, but all share a common view that a lawyer’s misconduct must be very serious before it falls within the realm of what must be reported. In other words, “mere” malpractice in handling a single matter probably would not qualify, but a repeated pattern of recklessness or indifference toward client interests probably would.

(E) Mandatory and Permissive Disclosure

DR 1-103(A) provides that a lawyer possessing unprivileged knowledge of a serious breach of conduct by another lawyer “shall inform Oregon State Bar Disciplinary Counsel.” While the rule thus mandates disclosure of certain information, an attorney may report such information assuming the source of the attorney’s knowledge of misconduct is not a client confidence or secret, an attorney may report such information.

Two factors may be relevant to the decision of whether to report under such circumstances, one militating in favor of disclosure and one militating against it. First, any person who makes a complaint to the Bar has absolute immunity from civil liability related to the act of filing the complaint. ORS 9.537(1). The Oregon Supreme Court has held that this immunity may not be limited or qualified. Ramstead v. Morgan, 219 Or 383, 397-401, 347 P2d 594 (1959) (holding that prior statute, which provided immunity only if complaint was made in good faith, unconstitutionally interfered with court’s power to regulate practice of law).

Second, complaints and all information divulged to the Bar in connection with the investigation of complaints are shown to the attorney under investigation and are considered public materials under ORS chapter 192, Oregon’s public records law. Oregon State Bar Board of Governors Policy 9.201; Sadler v. Oregon State Bar, 275 Or 279, 284, 550 P2d 1218 (1976) (holding that exemptions to public records law did not apply to disciplinary records). The OSB is the only bar association in the country that permits public access to a disciplinary complaint as soon as it is filed. Desk Reference § 8.7 n 10.

(F) Exceptions to the Disclosure Requirement

In addition to the exception for client confidences and secrets contained in DR 1-103(A), DR 1-103(E) provides two exceptions to the other disclosure requirement. Attorneys who obtain knowledge about another attorney’s misconduct through the course of their work with the State Lawyers Assistance Committee are exempted from the duty to report. This exception was created as a matter of public policy to facilitate the work of this group. Similarly, attorneys who obtain knowledge about another attorney’s misconduct through the course of their work with the Professional Liability Fund are exempted from the duty to report.

8.3:300   Reporting the Serious Misconduct of a Judge

Primary OR References: DR 1-103(A)
Background References: ABA Model Rule 8.3(b), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL § 5, Wolfram § 12.10
OR Commentary: EOL § 17.5

If the judge is a member of the OSB, a lawyer has a duty under DR 1-103(A) to report the judge’s violations of the DRs (assuming the information is not privileged and the violations are serious). See In re Sisemore, 271 Or 743, 746, 534 P2d 167 (1975). A lawyer is not required, however, to report a violation of the Code of Judicial Conduct that does not otherwise violate the DRs.

8.3:400   Exception Protecting Confidential Information [see 8.3:200(B)]

Primary OR References: DR 1-103(A)
Background References: ABA Model Rule 8.3(c), Other Jurisdictions
Commentary: ABA/BNA § 101:201, ALI-LGL §§ 61-66, Wolfram § 12.10
OR Commentary: EOL § 17.4

8.4   Rule 8.4 Misconduct

8.4:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 1-102(A)
Background References: ABA Model Rule 8.4, Other Jurisdictions
Commentary:
OR Commentary:

8.4:101      Model Rule Comparison

DR 1-102(A) is identical to MR 8.4, except that DR 1-102(A) does not include a counterpart for MR 8.4(f), which expressly prohibits a lawyer’s assistance of judicial conduct that is in violation of applicable rules or law.

8.4:102      Model Code Comparison

MC DR 1-102(A)(1) through (5) is substantively similar to Oregon’s counterparts; the Oregon rule combines the substance of MC DR 1-102(A)(1) and (2). Oregon’s DR 1-102(A)(5), which provides that it is also professional misconduct to “[s]tate or imply an ability to influence improperly a government agency or official,” is articulated in MC DR 9-101(C).

8.4:200   Violation of a Rule of Professional Conduct

Primary OR References: DR 1-102(A)
Background References: ABA Model Rule 8.4(a), Other Jurisdictions
Commentary: ABA/BNA § 101:101, ALI-LGL § 2, Wolfram § 3.3
OR Commentary:

Examples of violations of the first clause of DR 1-102(A)prohibiting violation of the DRsinclude the following: In re Ositis, 333 Or 366, 40 P3d 502 (2002) (use of investigator to pose as newspaper reporter); In re Miller, 11 DB Rptr 165 (1997) (attorney falsely misrepresented herself as bookkeeper when calling adverse party’s creditors, as did her secretary acting under lawyer’s instructions); In re Jones, 308 Or 306, 779 P2d 1016 (1989) (attorney disciplined for permitting use of his name on papers filed by nonlawyer who processed divorces). But cf. DR 1-102(D) (noting when attorneys may supervise or direct evidence-gathering by others that involves misrepresentation).

Regarding the prohibition of a lawyer’s assisting or inducing others to breach the DRs, DR 1-102(A)(1) violations sometimes overlap with those of DR 2-103 (rules regarding employment or use of others in recommending employment of lawyer or law firm) and DR 7-104(A)(1) (prohibition on lawyer communicating or causing another to communicate regarding related subjects with person lawyer knows to be represented by lawyer on that subject).

8.4:300   Commission of a Crime

Primary OR References: DR 1-102(A)(2)
Background References: ABA Model Rule 8.4(b), Other Jurisdictions
Commentary: ABA/BNA § 101:301, ALI-LGL § 8, Wolfram § 3.3.2
OR Commentary: EOL §§ 9.13, 22.4-.5

There are some crimes that lawyers can commit in wholly personal capacities for which they may not be disciplined. See, e.g., In re White, 311 Or 573, 589, 815 P2d 1257 (1991) (misdemeanor assault arising out of private dispute held not to violate DR 1-102(A)(2)); In re Winston, 3 DB Rptr 37 (1989) (conviction for furnishing alcohol to minor held not to subject lawyer to discipline).

Lawyers will be disbarred, however, for violations of criminal statutes that the courts consider to have a significant bearing on the lawyer’s fitness to practice law. See, e.g., In re Hendricks, 306 Or 574, 761 P2d 519 (1988) (conviction for participating in fraudulent tax scheme); In re Nash, 299 Or 310, 702 P2d 399 (1985) (conviction for first-degree sodomy involving minor child). A criminal conviction, however, is not a necessary element for such discipline to be imposed. See In re Anson, 302 Or 446, 730 P2d 1229 (1986) (lawyer disbarred for violation of DR 1-102(A)(2) by conduct constituting theft, although not convicted of criminal offense). Nor must the underlying crime be a felony, as distinct from a misdemeanor. See, e.g., In re Watson, No. 91-182, Or S Ct No. S38919 (1992) (attorney disciplined for misdemeanor conviction of attempting to promote prostitution). Violations of administrative regulations that have the force of law could conceivably result in discipline as well. See, e.g., ORS 59.991 (criminalizing violation of certain securities-related regulations). Much of the conduct that runs afoul of the prohibition on criminal conduct will also violate other DRs, such as DR 1-102(A)(3)’s prohibition on misrepresentations. See, e.g., In re Dinerman, 314 Or 308, 840 P2d 50 (1992) (attorney disciplined for knowing participation in scheme to avoid bank’s lending limits and for representing in writing that he owned property offered as security when he did not).

From a disciplinary perspective, the substantive rules of law applicable to an area of practice reflect the minimum standards that an attorney must meet.

8.4:400   Dishonesty, Fraud, Deceit and Misrepresentation

Primary OR References: DR 1-102(A)(3)
Background References: ABA Model Rule 8.4(c), Other Jurisdictions
Commentary: ABA/BNA § 101:401, ALI-LGL § 2, Wolfram § 3.3.3
OR Commentary: EOL §§ 9.5, 9.13, 22.7

Numerous provisions of the DRs and the Oregon Revised Statutes prohibit the lawyer from engaging in dishonesty, fraud, deceit, and misrepresentation. See, e.g., DR 7-102(A)(5) (prohibits lawyer from knowingly making false statements of law or fact in course of representing client or lawyer’s own interests); ORS 9.460(1) (requiring lawyers to support laws of nation and state, which include criminal code), 9.527(2) (providing that lawyer may be disciplined for conviction of felony or of misdemeanor involving moral turpitude), 9.527(4) (provides that attorney is subject to discipline for “willful deceit or misconduct in the legal profession”). Consequently, the lawyer’s ethical duties to the client do not compel the lawyer to engage in these prohibited sorts of behavior, even if such behavior would best achieve the client’s objectives. See, e.g., In re Martin, 308 Or 125, 775 P2d 842 (1989) (lawyer disbarred for violating DR 1-102(A)(3), among others, by attempting to bribe witness to testify favorably to lawyer’s client).

DR 1-102(A)(3) covers a wide range of conduct, from concealments to affirmative misrepresentations. See, e.g., In re Boardman, 312 Or 452, 822 P2d 709 (1991); In re Morin, 319 Or 547, 554, 878 P2d 393 (1994) (for disciplinary purposes, “[f]ailure to disclose material fact may be misrepresentation . . .”). The Oregon Supreme Court continues to rigorously enforce and broadly construe DR 1-102(A)(3). See, e.g., In re Staar, 324 Or 283, 289, 924 P2d 308 (1996) (attorney disciplined for false swearing in petition for restraining order to prevent abuse; fact that attorney not acting as lawyer does not diminish culpability); In re Melmon, 322 Or 380, 384, 908 P2d 822 (1995) (attorney disciplined for misrepresentation; it is no defense to rule that another person knew of dishonesty or misrepresentation).

Violation of DR 1-102(A)(3) requires dishonest intent. While conduct that is overtly dishonest will be subject to discipline, certain acts, which are seemingly contrary to prevailing civil law but do not involve dishonesty, are permitted. See, e.g., OSB Legal Ethics Op No 1991-92 (lawyer may advise client to breach contract). The Oregon Supreme Court has specifically left open the issue whether recklessness is a sufficient level of intent to violate DR 1-102(A)(3). In re Claussen, 322 Or 466, 480, 909 P2d 862 (1996).

8.4:500   Conduct Prejudicial to the Administration of Justice

Primary OR References: DR 1-102(A)(4)
Background References: ABA Model Rule 8.4(d), Other Jurisdictions
Commentary: ABA/BNA § 101:501, ALI-LGL § 2, Wolfram § 3.3.2
OR Commentary:

A sample of violations of DR 1-102(A)(4), which often overlap with violation of multiple other DRs, includes the following:

· In re Thompson, 325 Or 467, 940 P2d 512 (1997) (attorney disciplined for personally confronting court of appeals judge regarding judge’s opinion; actual harm to administration of justice is not required when appellate judgment was not yet entered and judge could have been improperly influenced or intimidated as result of personal confrontation);

· In re Garvey, 325 Or 34, 932 P2d 549 (1997) (attorney disciplined under rule for repeated lying to grand jury and assistance to client in escape from correctional facility);

· In re Meyer (I), 328 Or 211, 970 P2d 652 (1999) (attorney who was too intoxicated to participate on behalf of his client at DMV hearing, and caused hearing to be reset, violated this rule);

· In re Werner, Or S Ct No. S46237, 13 DB Rptr ___ (1999) (attorney made several misrepresentations to court indicating that attorney’s pleadings had been served on opposing counsel when they had not); and

· In re Stauffer, 327 Or 44, 956 P2d 967 (1998) (attorney’s continued misuse of both probate and bankruptcy courts to pursue his unpaid fees resulted in lengthy delay in closing estate and was conduct prejudicial to administration of justice).

See also ORS 135.405(4) (“Similarly situated defendants should be afforded equal plea agreement opportunities.”). A government lawyer who engages in selective plea bargaining in violation of this statute also violates DR 1-102(A)(4). In re Roger Rook, 276 Or 695, 556 P2d 1351 (1976); see also In re Miller, 310 Or 731, 801 P2d 814 (1990).

8.4:600   Implying Ability to Influence Public Officials

Primary OR References: DR 1-102(A)(5)
Background References: ABA Model Rule 8.4(e), Other Jurisdictions
Commentary: ABA/BNA § 101:701, ALI-LGL § 113
OR Commentary:

8.4:700   Assisting Judge or Official in Violation of Duty

Primary OR References:
Background References: ABA Model Rule 8.4(f), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 113
OR Commentary:

8.4:800   Discrimination in the Practice of Law

Primary OR References:
Background References: Other Jurisdictions
Commentary: ABA/BNA § 91:301
OR Commentary:

8.4:900   Threatening Prosecution

Primary OR References: DR 7-103(A), 7-105(A)
Background References: Other Jurisdictions
Commentary: ABA/BNA § 1:801, 61:601
OR Commentary: EOL §§ 9.16, 10.21

DR 7-105(A) prohibits a lawyer in certain cases from threatening to present criminal charges to obtain an advantage in a civil matter. The rule permits such threats “if, but only if, the lawyer reasonably believes the charge to be true and if the purpose of the lawyer is to compel or induce the person threatened to take reasonable action to make good the wrong which is the subject of the charge.” DR 7-105(A).

The exception for a lawyer seeking redress of the same wrong was added in 1991, with the intent of allowing lawyers to make reasonable requests for redress, just as the general public is permitted to do. For example, if a neighbor takes a bicycle owned by the lawyer’s son, DR 7-105 allows the lawyer to say, “Give it back or I’ll call the cops.” Similarly, an attorney for an employer who has reason to believe that an employee has stolen the employer’s property may negotiate a termination agreement pursuant to which the employee agrees to “leave quietly” and the employer agrees not to go to the police. See Transcript, Oregon State Bar Annual Meeting at 150-56 (Oct. 5 1990). But see In re Huffman, 328 Or 567, 983 P2d 534 (1999) (attorney threatened criminal prosecution of former client to deter client from challenging attorney fee judgment previously obtained by attorney; threat was improper because attorney had no reasonable belief that crime had been committed).

Since DR 7-105 on its face prohibits only threats “to present” criminal charges, it is inapplicable if the charges are already pending. OSB Legal Ethics Op No 1991-113. By contrast, DR 1-102(A)(4) (conduct prejudicial to administration of justice), 7-102(A)(1) (action to harass), and 7-102(A)(2) (unwarranted claims) may be invoked if, for example, a prosecutor pursues criminal charges for which there is no probable cause. OSB Legal Ethics Op No 1991-113. Absent abusive conduct of this type, however, it should be clear that under the present version of the rule, prosecutors may bring parallel civil and criminal proceedings against a defendant, may threaten to bring or pursue criminal charges if a defendant does not make amends with the victim of a crime, and may simultaneously negotiate the settlement of civil and criminal matters. See DR 7-103(A) (“A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when the lawyer knows or it is obvious that the charges are not supported by probable cause.”); OSB Legal Ethics Op No 1994-139 (prosecutor may threaten to file felony charges against misdemeanor defendant in response to defendant’s refusal to accept plea offer on pending charges, provided that felony charges are supported by probable cause, filing of charges is not motivated by vindictiveness, and due process is not otherwise violated).

8.5   Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100   Comparative Analysis of Oregon Rule

Primary OR References:
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary:
OR Commentary:

8.5:101      Model Rule Comparison

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8.5:102      Model Code Comparison

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8.5:200   Disciplinary Authority

Primary OR References:
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2001, ALI-LGL § 5, Wolfram § 3.2
OR Commentary:

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

8.5:300   Choice of Law

Primary OR References:
Background References: ABA Model Rule 8.5, Other Jurisdictions
Commentary: ABA/BNA § 101:2101, ALI-LGL § 2, Wolfram § 2.6.1
OR Commentary:

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