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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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
0.1:100 Sources of Law and Guidance
This outline reviews the principal issues of legal ethics and professionalism likely to be of significance to attorneys practicing in Oregon. This chapter identifies the law and the disciplinary rules that govern the conduct of lawyers in Oregon. For a broader review of legal ethics and professionalism, see The Ethical Oregon Lawyer (OSB CLE 1991 & Supp 1998) (EOL) from which some of this outline’s text is drawn directly.
The Disciplinary Rules of the Oregon Code of Professional Responsibility (DRs) establish the principal rules governing Oregon attorneys. The DRs essentially follow the former American Bar Association Model Code of Professional Responsibility (MCs or ABA Model Code) (1969). Parts of the subsequent American Bar Association Model Rules of Professional Conduct (1983) (MRs or ABA Model Rules), however, have also been adopted. In addition, portions of the DRs are unique to Oregon. If a lawyer violates a DR, the lawyer can be subjected to disciplinary action. EOL § 1.2.
The ABA prepared the Ethical Considerations (ECs) to direct lawyer conduct in certain situations and to help interpret the ABA Model Code. Although violation of an EC, by itself, will not establish grounds for discipline, the Oregon Supreme Court has stated that the ECs may be helpful “in determining the intent” of the DRs. EOL § 1.2 (quoting In re Griffith, 304 Or 575, 610 n 20, 748 P2d 86 (1987) (quoting In re Moore, 299 Or 496, 507, 703 P2d 961 (1985))).
This outline discusses the rules that create an administrative code governing attorney conduct. It is not necessarily a defense to disciplinary action that an attorney may have intended no harm or that no harm actually results from the attorney’s conduct. See, e.g., In re Germundson, 301 Or 656, 662, 724 P2d 793 (1986) (lawyer who undertook representation prohibited by DR 5-101(A) “by mistake” held subject to discipline); In re Luebke, 301 Or 321, 333, 722 P2d 1221 (1986) (failure to disclose conflict of interest resulted in attorney discipline although no harm to client was intended and prospect of injury to client was not then reasonably foreseeable); In re Holman, 297 Or 36, 58, 682 P2d 243 (1984) (suggesting that current DR 9-101(A) is strict liability offense); In re McCaffrey, 275 Or 23, 28, 549 P2d 666 (1976) (no intentional wrongdoing is required to establish violation of prohibition in DR 7-104(A)(1) against communications with persons who are represented by counsel).
Oregon Revised Statutes (ORS) chapter 9 contains several significant provisions for attorneys. Violation of ORS chapter 9 subjects a lawyer to discipline. EOL § 1.3; see, e.g., ORS 9.460, 9.527; In re Griffith, 304 Or at 620-22. There may be some inconsistencies between ORS chapter 9 and the DRs. Compare State v. Keenan/Waller, 307 Or 515, 771 P2d 244 (1989), with DR 4-101. If a conflict exists, the more restrictive rule controls.
According to Oregon State Bar Rules of Procedure (BR) 1.4, a lawyer admitted in Oregon is subject to ORS chapter 9 and the related disciplinary rules regardless of where the conduct takes place. BR 1.4 also establishes the respective choice of law provisions for the exercise of Oregon’s disciplinary authority.
The Oregon Supreme Court has interpreted the DRs through a series of opinions. The court has warned Oregon lawyers about the importance of complying with the DRs. EOL § 1.4; see, e.g., In re Boyer, 295 Or 624, 630, 669 P2d 326 (1983). The court’s silence regarding certain conduct should not give rise to the assumption that the conduct is permitted. The court has expanded its interpretation of the DRs when necessary to correct perceived wrongs. Id.; see ORS 9.529 (“Bar proceedings . . . are sui generis and within the inherent power of the Supreme Court to control.”). Given the evolution of the DRs, care should be taken in applying older case law to current circumstances. Id.
The Oregon Court of Appeals does not hear cases of attorney discipline. However, the court of appeals may become involved in discipline-related matters when ruling on disqualification motions or attorney fee matters. EOL § 1.5; see, e.g., Collatt v. Collatt, 99 Or App 463, 782 P2d 456 (1989).
The trial panel is the trial court for the attorney disciplinary system. EOL § 1.5. Trial panel decisions are now published by the Oregon State Bar (OSB) in the Disciplinary Board Reporter (DB Rptr) series. See EOL §§ 21.9-.11.
Oregon attorneys with questions about ethics matters can contact the office of general counsel at the OSB to seek guidance ((503) 620-0222; toll free in Oregon (800) 452-8260). For information, contact George Riemer, General Counsel, at email@example.com or OSB extension 405 or Sylvia Stevens, Assistant General Counsel, at firstname.lastname@example.org or OSB extension 359. EOL § 1.6.
In the alternative, a lawyer may seek an informal opinion from the Legal Ethics Committee of the OSB. Such requests should be submitted in writing to the office of general counsel of the OSB. Id.
If an issue of possible statewide importance arises, the Legal Ethics Committee, rather than issuing an informal opinion, may prepare a draft formal ethics opinion for review by the OSB Board of Governors. EOL § 1.7. If the board concurs with the draft opinion, it is then published as a formal ethics opinion (cited as OSB Legal Ethics Op No [year and opinion number]). While formal ethics opinions do not bind the Oregon Supreme Court, the court typically lends formal ethics opinions significant weight. Id. Note: all formal opinions outstanding before 1991 were withdrawn and a new set of opinions was issued that year. Id.
The full text of all Oregon formal ethics opinions are compiled in the publication entitled Oregon Formal Ethics Opinions and are available from the OSB’s Web site and on WestLaw in the ORETH - EO database.
The advisory ethics opinions of the ABA Committee on Ethics and Professional Responsibility do not bind Oregon lawyers. EOL § 1.8. Nevertheless, the ABA ethics opinions often provide valuable assistance when the DRs, the formal Oregon ethics opinions, and the Oregon Supreme Court opinions have not yet established guidelines. Id.
The OSB has adopted a voluntary statement of professionalism. EOL § 1.10. Although aspirational in nature, these statements may help to define permissible conduct.
With respect to frivolous conduct in litigation, cases interpreting Federal Rules of Civil Procedure (FRCP) 11 and Oregon Rules of Civil Procedure (ORCP) 17 may also provide ethical guidance. See Federal Practice (OSB CLE 1994 & Supp 1998).
The DRs arise primarily from the ABA Model Code. EOL § 1.2. However, portions of the DRs have been adopted from the MRs. Id.
The OSB allows public access to disciplinary complaint files from the initial filing of a complaint. BR 1.7(b). The OSB also requires all attorneys in private practice to retain malpractice coverage. ORS 9.080(2)(a); EOL § 20.2. Oregon has its own language with regard to current-client conflicts issues. See generally EOL §§ 12.7-.18.
0.2:200 Forms of Lawyer Regulation in Oregon
Rules of procedure adopted by the board of governors and the Oregon Supreme Court, together with portions of ORS chapter 9 and relevant case law govern Oregon’s disciplinary system for lawyers. Oregon’s disciplinary system presents a unitary disciplinary process in which the OSB performs all of the investigative, prosecutorial, and adjudicative functions. See EOL ch 21; George A. Riemer, Oregon State Bar Desk Reference ch 6 (1990) (Desk Reference).
The Oregon Code of Judicial Conduct (CJC), which was substantially revised, effective January 1, 1996, imposes both the standards of conduct and the ethical requirements for judges. EOL § 18.1. The CJC governs anyone who acts as an officer of a judicial system performing judicial functions. Thus the CJC applies to traditional judges, bankruptcy referees, special masters, court commissioners, magistrates, and lawyers serving as pro tem or part-time judges. EOL § 18.2. The CJC may also apply to lawyers serving as arbitrators under a statutorily mandated arbitration system. Id.; see ORS 36.400-.425.
The Oregon Legislative Assembly established the OSB in 1935 to license and discipline attorneys, to regulate the practice of law, and to provide services to both members and the public. The OSB is a public corporation and is an agency of the Oregon Judicial Department. The OSB receives all of its funding from member dues and CLE and other program fees. All attorneys practicing law in Oregon must belong to the OSB.
The OSB serves as the attorney disciplinary agency in Oregon. The investigatory, prosecutorial, and adjudicative functions are all performed under the auspices of the OSB.
Generally, the OSB disciplinary process starts when an aggrieved party files a written complaint with the OSB. Filing a complaint is absolutely civilly privileged. See EOL §§ 21.2-.12. So is the lawyer’s response. Leveque v. Paulson, 126 Or App 12, 867 Pd 516 (1994) (complaint and lawyer’s response are absolutely privileged). First, OSB disciplinary counsel review the complaint. If it appears that a complaint raises a possible legal ethics issue, disciplinary counsel will send a copy to the accused lawyer, and the lawyer will be asked to respond within 21 days. Failure to respond promptly and fully to such a request within this 21-day period (extensions are readily granted at this stage) will subject a lawyer to discipline under DR 1-103(C), even if the lawyer is, in fact, innocent of any substantive wrongdoing. EOL § 21.2; see, e.g., In re Haws, 310 Or 741, 801 P2d 818 (1990). Failure to respond may also cause the complaint to be referred to the appropriate Local Professional Responsibility Committee. BR 2.5(b)(2); see EOL §§ 21.2-.12.
Lawyers have been disciplined for failure to cooperate with Bar investigations and prosecutions. EOL § 21.2; see In re Schaffner, 325 Or 421, 939 P2d 39 (1997); In re Staar, 324 Or 283, 924 P2d 308 (1996); In re Schaffner, 323 Or 472, 918 P2d 803 (1996); In re Williams, 314 Or 530, 840 P2d 1280 (1992) (accused’s duty to respond fully and truthfully continues even after formal charges are filed); In re Hedges, 313 Or 618, 836 P2d 119 (1992); In re Jones, 312 Or 611, 825 P2d 1365 (1992); In re Benjamin, 312 Or 515, 823 P2d 413 (1991). The OSB Disciplinary Board also has imposed discipline for noncooperation in violation of DR 1-103(C). See, e.g., In re Oliver, 7 DB Rptr 107 (1993); In re Black, 6 DB Rptr 95 (1992); In re VanZeipel, 6 DB Rptr 71 (1992); In re Levi, 5 DB Rptr 27 (1991). Oregon lawyers also have the duty to cooperate with the State Lawyers Assistance Committee. See DR 1-103(F); In re Spies, 316 Or 530, 852 P2d 831 (1993).
Most lawyers respond to the complaints filed with the OSB. The OSB then shares the lawyer’s response with the complainant so the complainant may offer any additional comments or details. If the complainant offers additional information, the lawyer may reply. Cf. BR 2.8.
The OSB also has subpoena power to aid its analysis of complaints. EOL § 21.2; ORS 9.532(3); see also Leveque v. Paulson, 126 Or App 12, 16, 867 P2d 516 (1994) (lawyer’s response to Bar complaint is absolutely privileged if response has “some relation” to charges made; doctor’s defamation action against lawyer for statement made in response to Bar complaint was properly dismissed by trial court).
If disciplinary counsel determine that the complaint does not reveal probable cause to believe misconduct has occurred, disciplinary counsel must dismiss the complaint. EOL § 21.2; BR 2.5(c). Dismissal will end the matter unless the complainant requests further review by the State Professional Responsibility Board (SPRB) pursuant to BR 2.5(c). If the SPRB reverses disciplinary counsel, and this is rare, the matter is treated in accordance with the procedures set forth below.
If disciplinary counsel determine that the complaint raises a simple fee dispute or potential malpractice claim rather than an ethics issue, disciplinary counsel may refer the complaint to the OSB’s fee arbitration program or to the Professional Liability Fund. EOL § 21.2. If a parallel civil or criminal proceeding is pending, the OSB may, but need not, suspend its investigation of an alleged ethics violation. Cf. People v. Bottinelli, 782 P2d 746 (Colo 1989).
The OSB may also investigate potentially unethical conduct on its own initiative. For instance, the OSB will investigate unethical conduct on its own because of a newspaper article about a lawyer or because it learns that a lawyer has been convicted of a crime or subjected to discipline in another jurisdiction. See, e.g., BRs 2.6, 3.4; In re Griffith, 304 Or 575, 748 P2d 86 (1987); EOL § 21.2; Desk Reference § 6.3.
Oregon, like the vast majority of states, does not have a statute of limitations in OSB disciplinary proceedings.
If disciplinary counsel, after reviewing the complaint and the lawyer’s response, determine that a complaint raises probable cause to believe that misconduct has occurred, disciplinary counsel may either refer the matter to the appropriate Local Professional Responsibility Committee (LPRC) for investigation or report the matter directly to the SPRB. The SPRB may refer matters to LPRCs for further investigation at this point as well. EOL § 21.3.
There are 16 LPRCs in Oregon. Each committee consists of at least one public member and a number of lawyers who reside or practice in the region from which they are selected to serve. All LPRC members are unpaid volunteers.
When the LPRC investigates a matter, the investigator typically interviews the complainant, the accused lawyer, and, if the LPRC deems appropriate, other potential witnesses. Once again, lawyers who do not cooperate are subject to discipline for noncooperation. See, e.g., DR 1-103(C).
LPRCs report to the SPRB regarding each referral. Disciplinary counsel present LPRC reports to the SPRB and make a recommendation. The SPRB then decides whether the complaint should be dismissed, the lawyer should be admonished, or formal disciplinary charges should be filed. EOL § 21.3.
Pursuant to ORS 9.532(2) and BR 2.3(b)(1), the OSB Board of Governors appoints the nine members of the SPRB. The SPRB consists of seven lawyers and two public members. All are volunteers. EOL § 21.4.
The SPRB plays several different roles. Id. First, the SPRB reviews complainant appeals objecting to disciplinary counsel decisions not to pursue complaints. If the SPRB concurs with disciplinary counsel’s decision, which occurs more often than not, the complainant has no further right of appeal. BR 2.5(d)(1)(A). If, however, the SPRB determines that the matter merits additional investigation, it is referred to the appropriate LPRC.
The SPRB also reviews the results of LPRC investigations and the corresponding memoranda by disciplinary counsel. The SPRB may accept or reject LPRC or disciplinary counsel recommendations. The SPRB may also request additional investigation by the LPRC before making a decision.
After reviewing a complaint and the accompanying materials, the SPRB may approve the filing of a formal complaint. Alternatively, the SPRB may propose that a letter of admonition be offered to a lawyer.
The decision of the SPRB to file a formal complaint against an attorney may be rescinded only when, to the satisfaction of a majority of the entire SPRB, good cause exists. BR 2.5(g). Good cause means “(A) new evidence which would have clearly affected the SPRB’s decision to file a formal complaint; or (B) legal authority, not known to the SPRB at the time of its last consideration of the matter, which establishes that the SPRB’s decision to file a formal complaint was incorrect.” Id. Although rarely granted, reconsideration is a safety valve for clear error. EOL § 21.4.
If the SPRB concludes that only a minor violation has occurred, the SPRB may offer the accused lawyer a letter of admonition. EOL § 21.5. Pursuant to Board of Governors Policy 9.305(B), an admonition is not considered formal discipline. Instead, an admonition is a public statement that, in the opinion of the SPRB, the lawyer’s conduct violated one or more DRs or ORS chapter 9.
Once the SPRB authorizes an admonition, disciplinary counsel prepare the admonition and issues it to the lawyer for acceptance or rejection. BR 2.5(d)(1)(B). The rules provide the lawyer 14 days to accept or reject an admonition that is issued, although an extension of time may be requested. If the lawyer accepts the admonition, the letter is placed in the lawyer’s file, which is maintained for public examination. The matter is then closed. If the lawyer rejects the letter of admonition, a formal disciplinary complaint is filed to determine whether unethical conduct has occurred.
The Oregon Supreme Court has used admonitions as a factor in aggravation of misconduct under the ABA Standards for Imposing Lawyer Sanctions (ABA Standards). ABA Standard 9.22 (aggravating factors that may justify increase in degree of discipline to be imposed include prior disciplinary offenses); see, e.g., In re Cohen, 330 Or 489, 8 P3d 953 (2000) (prior admonition may be considered if offense is similar).
The OSB relies on a panel system of volunteer lawyers, divided by region, to serve as trial counsel in disciplinary cases. EOL § 21.6. Trial counsel prepare and file formal complaints and try disciplinary cases in conjunction with disciplinary counsel.
Pursuant to BR 4.1(c), formal complaints “shall set forth succinctly the acts or omissions of the accused, including the specific statutes or disciplinary rules violated, so as to enable the accused to know the nature of the charge or charges against the accused.” EOL § 21.6; cf. In re Magar, 296 Or 799, 806 n 3, 681 P2d 93 (1984) (accused entitled to notice of both alleged rule violations with and conduct alleged to constitute violation); In re Fulop, 297 Or 354, 685 P2d 414 (1984) (charge dismissed when complaint failed to provide fair notice of portion of DR allegedly violated). When more than one act or transaction is complained of, the allegations must be separately stated and numbered.
Once a formal complaint is filed, disciplinary counsel will submit the complaint to the accused, or the accused’s lawyer, for acceptance of service. If necessary, the accused will be served with a formal complaint and a notice to answer by the sheriff’s office or a private process server. EOL § 21.6; BR 1.12. As a last resort, a complaint may be served by publication. BR 4.2(b); In re Coe, 302 Or 553, 731 P2d 1028 (1987); In re O’Shea, 302 Or 144, 727 P2d 119 (1986).
The rules do not prescribe a set time within which a formal complaint must be filed after the SPRB approves charging a lawyer with an ethics violation. Cf. BR 11.1; see also State ex rel Okla. Bar Ass’n v. Perkins, 757 P2d 825 (Okla 1988); Rodgers v. State Bar of California, 48 Cal 3d 300, 256 Cal Rptr 381, 768 P2d 1058 (1989).
After being served with a formal complaint and notice to answer, a lawyer must file an answer within 14 days. EOL § 21.7; BR 4.3(a). As the sole permissible alternative to filing an answer, a lawyer may move pursuant to BRs 4.4(a) and 4.1(c) to require that the formal complaint succinctly set forth the acts or omissions of the accused and the DRs or statutes violated. EOL § 21.7.
The accused’s answer must respond to the formal complaint and cannot assert a general denial of the charges. BR 4.3(d).
The Bar trial counsel may grant the accused lawyer one extension, up to 14 days, to answer. BR 4.3(b). Further extensions of time for filing any pleadings or required documents may be granted only by the assigned trial panel chairperson. BR 4.3(c).
BR 3.6 permits discipline to be imposed by consent and without a hearing. Discipline by consent under BR 3.6 means either a no-contest plea or a stipulation for discipline. EOL § 21.8.
A no-contest plea in the disciplinary context is like a plea of no contest in a criminal case. EOL § 21.8. It can be executed any time after the formal complaint is served on the accused. The plea may be to all the allegations in the Bar’s formal complaint or to any designated cause in the complaint. It must contain the representations and information specified in BR 3.6(b).
BR 3.6(c) also permits a stipulation for discipline but it must satisfy the requirements of BR 3.6(c). See also In re Fitting, 304 Or 143, 742 P2d 609 (1987); In re Harris, 304 Or 43, 741 P2d 890 (1987); In re Stevenson, 297 Or 452, 683 P2d 550 (1984). A stipulation can be entered into any time after the service of a formal complaint. Although the OSB asserts that it does not “plea bargain” in the sense in which that term is used in criminal cases, disciplinary counsel may stipulate to the dismissal of doubtful charges.
After the accused and disciplinary counsel prepare a plea or stipulation in a satisfactory form, it is submitted to the SPRB for approval. If the SPRB accepts the plea or stipulation, it is submitted to the OSB Disciplinary Board if it involves a reprimand or a suspension up to six months. If the plea or stipulation involves a suspension greater than six months or disbarment, it must also be reviewed by the Oregon Supreme Court. BR 3.6(d)-(e).
BR 3.6(d) requires that disciplinary counsel approve the plea or the stipulation as to form only, not substance, before submitting it to the SPRB for approval. Thus an accused may ask disciplinary counsel to submit a plea or stipulation to the SPRB even if disciplinary counsel retain the right to recommend against an unreasonable offer of settlement. Offers not recommended by disciplinary counsel have been accepted on occasion by the SPRB. EOL § 21.8.
If either the SPRB or the Oregon Supreme Court, as the case may be, accepts the plea or stipulation, the discipline set forth in the document is imposed. The plea or stipulation is published in the Disciplinary Board Reporter (for reprimands and suspensions up to six months). Pleas or stipulations to suspensions over six months and disbarments are not uniformly published in the Oregon Advance Sheets upon acceptance by the Oregon Supreme Court. If a plea or stipulation is accepted, OSB may also be entitled to costs pursuant to BR 3.6(f). EOL § 21.8.
A rejected plea or stipulation may not be used as evidence of misconduct against the accused in the pending or any subsequent disciplinary proceeding. Id.; BR 3.6(e). Similarly, BR 3.6(h) provides that “[a] plea or stipulation . . . shall not be subject to public disclosure prior to OSB Disciplinary Board or court approval . . . or if [the plea or stipulation is] rejected . . . .”
BR 3.6(d) authorizes the chair of the SPRB or his or her designee to approve pleas of no contest or stipulations in substance for the SPRB.
After the filing of a formal complaint and answer, disciplinary counsel refer the matter to the appropriate regional chairperson of the OSB Disciplinary Board for selection of a trial panel consisting of two lawyers (one of whom will serve as chair of the trial panel) and one public member. EOL § 21.9; BR 2.4(a).
BR 2.4(f)(3) permits a single adjudicator (instead of a three-member panel) to hear charges against a lawyer as long as the Bar and the accused stipulate to such an arrangement in advance.
Both the OSB and the accused are entitled to one peremptory challenge and an unlimited number of challenges for cause. BR 2.4(g) limits challenges for cause to issues that can be raised under the CJC and OSB’s rules of procedure. Challenges must be filed in writing with the regional chairperson within seven days of written notice of the appointment of a trial panel. Id.; EOL § 21.9.
The regional chairperson must rule on any challenges, and, if challenges are sustained, the regional chairperson must select an alternate member or members for substitute appointment. BR 2.4(f); EOL § 21.9. As in the case of a judge under the CJC, the OSB and the accused may at times waive the disqualification of a trial panel member. See CJC Canons 3C(1)(c), 3C(1)(d), 3D. A written waiver of disqualification must be made a part of the record. BR 2.4(g).
Under the CJC, trial panel members are considered judges. See BR 2.4(d)(1); EOL § 21.10. As a result, the parties and their counsel must comply with the restrictions in DR 7-110 regarding ex parte contact with judges. At the same time, trial panel members must comply with Canon 3A(4) on ex parte communications. Id.
The OSB has on file the resumes of all OSB Disciplinary Board members. An accused who would like to review these resumes to assist in deciding whether to challenge a trial panel member should contact Donna Richardson, (503) 620-0222, ext. 404, or toll-free in-state, (800) 452-8260. EOL § 21.9.
After the trial panel has been composed, disciplinary counsel will send the pleadings to the trial panel, which then schedules a hearing. BR 2.4(h). The trial panel chairperson must select the hearing date and must rule on all prehearing motions. The chairperson must generally schedule the hearing not less than 42 days or more than 91 days from the date that the trial panel chairperson received the pleadings. Id. The trial panel chairperson must also convene the hearing and ensure its orderly completion. EOL § 21.10.
Under BR 4.6 and 4.7, either disciplinary counsel or the accused may request a prehearing conference in all formal prosecutions. The conference, to be held no later than 21 days before the scheduled hearing, is intended to help narrow factual and legal issues in dispute for trial and to facilitate discussion regarding discipline by consent under BR 3.6. The conference is to be with a OSB Disciplinary Board member who is selected by the trial panel chairperson and will not subsequently be assigned to hear the charges if the matter proceeds to trial. The panel member will enter a prehearing order following the hearing.
All proceedings before trial panels must be transcribed. See BR 5.3(e). The court reporter submits the transcript to the trial panel chairperson with notice to disciplinary counsel, Bar counsel, and the accused. Absent an extension, Bar counsel and the accused must move the chairperson for an order correcting any errors appearing in the transcript within 14 days after the transcript is filed with the trial panel chairperson. BR 5.3(d). Following a ruling on the objections, the transcript, the exhibits, and the trial panel’s opinion are forwarded to disciplinary counsel. BR 2.4(i)(4); EOL § 21.10.
Absent an extension, the trial panel must file its written opinion with disciplinary counsel by the later of the following: within 21 days of the conclusion of the hearing, the settlement of the transcript if required under BR 5.3(d), or the filing of briefs if requested by the trial panel chairperson pursuant to BR 2.4(i)(2). EOL § 21.11. The opinion must include specific findings of fact, conclusions, and a disposition. BR 2.4(i)(3). Copies of all final nonappealed OSB Disciplinary Board opinions are published in the Disciplinary Board Reporter, published annually by the OSB. EOL § 21.11.
The OSB or the accused have the right to request Oregon Supreme Court review if the trial panel dismisses all of the charges against the accused, imposes a public reprimand, or suspends the accused from the practice of law for up to six months. EOL § 21.12; ORS 9.536(1); BR 10.1. The OSB may even request review solely to seek a sanction greater than that imposed by the trial panel. See, e.g., In re Leonard, 308 Or 560, 784 P2d 95 (1989). If the trial panel imposes a suspension greater than six months, the supreme court will review the matter automatically. ORS 9.536; BR 10.4.
The request for supreme court review must be filed within 28 days after disciplinary counsel mail a copy of the trial panel opinion. BR 10.3. Disciplinary counsel then submit the record to the supreme court. The court will acknowledge receipt of the record, set a briefing schedule, and hold oral argument as in other cases. The party requesting review is designated the petitioner. See Oregon Rules of Appellate Procedure (ORAP) 1.15(3)(n). BR 10.5(b) provides, however, that the accused is to be the petitioner in all cases in which the trial panel made a finding of misconduct.
Typically, the Oregon Supreme Court issues per curiam opinions in disciplinary and contested admission or reinstatement cases. Desk Reference § 6.2.6. The prevailing party is also entitled to costs. BR 10.7(b).
When formally charged with misconduct, a lawyer is entitled to (1) reasonable written notice of the charges, (2) a reasonable opportunity to defend against the charges, (3) the right to be represented by counsel, (4) the right to examine and cross-examine witnesses, (5) the right to appear and testify, presumably at all hearings held in the matter, and (6) the right to issue subpoenas for the attendance of witnesses and for the production of books, papers, or documents. ORS 9.534(2); EOL § 21.13. Some of the rights are discussed below. In a formal disciplinary proceeding, BR 4.5 permits both the OSB and the accused to conduct prehearing discovery.
A lawyer accused formally of ethical violations is presumed innocent. EOL § 21.15; In re Jordan, 295 Or 142, 156, 665 P2d 341 (1983). The OSB must prove its charges by clear and convincing evidence. BR 5.2. Clear and convincing evidence means that the truth of the facts asserted must be highly probable. See, e.g., In re Gildea, 325 Or 281, 936 P2d 975 (1997); In re Morrow, 297 Or 808, 817, 688 P2d 820 (1984).
An accused lawyer has the right to confront OSB’s witnesses. ORS 9.534(2).
Trial panels may “admit and give effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs.” BR 5.1(a); see EOL § 21.17. Under this administrative law standard, the trial panel may admit hearsay statements if deemed probative. See, e.g., Conway v. State Bar of California, 47 Cal 3d 1107, 255 Cal Rptr 390, 767 P2d 657 (1989) (in Bar disciplinary proceeding, using hearsay does not create inherent problem); Reguero v. Teacher Standards and Practices, 312 Or 402, 822 P2d 1171 (1991) (hearsay alone can establish substantial evidence sufficient to support administrative findings of fact, even if inadmissible in civil or criminal proceedings). But see Willner v. Committee on Character and Fitness, 373 US 96, 83 S Ct 1175, 10 L Ed 2d 224 (1963) (implying that, in Bar disciplinary proceeding, due process includes right to confront and cross-examine all witnesses). In Bar disciplinary proceedings, evidence obtained in violation of the Fourth Amendment, the state constitution, or state law is probably not admissible. See In re William M. Langley, 230 Or 319, 370 P2d 228 (1962); see also Dyson v. California State Personnel Bd., 213 Cal App 3d 711, 262 Cal Rptr 112 (1989) (illegally seized evidence inadmissible in personnel board hearing). EOL § 21.17.
Although an accused lawyer has the right to be represented by counsel, an accused lawyer probably does not have a right to court-appointed counsel if the accused cannot afford representation. ORS 9.534(2); see, e.g., Walker v. State Bar of California, 49 Cal 3d 1107, 264 Cal Rptr 825, 783 P2d 184 (1989) (Sixth Amendment does not apply to Bar proceedings); Avila v. Colorado Supreme Court Grievance Committee, 704 F Supp 195 (D Colo 1989) (same).
In In re Griffith, 304 Or 575, 748 P2d 86 (1987), the court held that an attorney has a right to, but need not be, personally present at his or her disciplinary hearing. The court found that the OSB complied with ORS 9.534(2) by giving the accused a reasonable opportunity to defend against the charges.
Under the Fifth Amendment to the U.S. Constitution, an accused lawyer may invoke his or her right against self-incrimination. See, e.g., State v. Horton, 561 A2d 488 (Me 1989); DR 1-103(C) (lawyer’s duty to cooperate with Bar “is subject . . . to the exercise of any applicable right or privilege”); EOL § 21.20.
Because disciplinary proceedings are not criminal cases, the OSB is not altogether prohibited from calling the accused as a witness. Tucker v. Virginia State Bar, 357 SE2d 525 (Va 1987). Nevertheless, the Fifth Amendment protects any person in any proceeding—whether criminal, civil, or administrative, including Bar disciplinary hearings—from being compelled to make disclosures that the person might “‘reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.’” Application of Gault, 387 US 1, 48, 87 S Ct 1428, 18 L Ed 2d 527 (1967) (quoting Murphy v. Waterfront Com’n of New York Harbor, 378 US 52, 94, 84 S Ct 1594, 12 L Ed 2d 678 (1964)) (emphasis omitted); Spevak v. Klein, 385 US 511, 87 S Ct 625, 17 L Ed 2d 574 (1967).
The privilege against self-incrimination must be invoked on a question-by-question basis. See, e.g., In re Zisook, 430 NE2d 1037 (Ill 1981), cert denied sub nom Zisook v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, 457 US 1134, 102 S Ct 2962, 73 L Ed 2d 1352 (1982); Miss. State Bar v. Attorney-Respondent, etc., 367 So 2d 179 (Miss 1979); see also Andrea G. Nadel, Annotation, “Extent and Determination of Attorney’s Right or Privilege Against Self-Incrimination in Disbarment or Other Disciplinary Proceedings—Post-Spevak Cases,” 30 ALR4th 243 (1984).
There is no statute of limitations for Oregon disciplinary proceedings. Cf. State v. Mannix, 133 Or 329, 336, 288 P 507 (statute of limitations against criminal prosecution not defense to disciplinary proceeding), reh’g den 133 Or 379 (1930). Although BR 11.1 provides that the OSB’s failure to meet the time limitations may be grounds for dismissing a formal complaint if “‘a showing is made that the delay substantially prejudiced the ability of the accused . . . to receive a fair hearing,’” disciplinary proceedings in Oregon have never been dismissed for such violations. In re Griffith, 304 Or at 590 (quoting BR 11.1); In re Reuben G. Lenske, 269 Or 146, 164, 523 P2d 1262 (1974), cert den 420 US 908 (1975); see, e.g., In re Philip Weinstein, 254 Or 392, 394, 459 P2d 548 (1969) (27-month delay held not to justify dismissal), cert den 398 US 903 (1970); EOL § 21.21.
In In re Leonard, 308 Or 560, the Oregon Supreme Court held that expert testimony concerning the meaning of the Bar’s disciplinary rules was per se inadmissible. However, the court did not decide the question of the admissibility of expert testimony to establish a standard of practice in the legal community if such a standard is relevant to a disciplinary proceeding and expert testimony has been admitted for this purpose. Cf. EOL § 21.22.
An accused lawyer may petition the Oregon Supreme Court for inactive membership status due to a disability at any time during disciplinary proceedings. EOL § 21.23. The disability petition must allege that the disability is based on a personality disorder; mental infirmity or illness; senility; or addiction to drugs, narcotics, or intoxicants. BR 3.2(b)(1). The petition must also allege that the disability prevents the accused lawyer from understanding the proceeding, from assisting and cooperating with his or her lawyer, or from participating in his or her defense. BR 3.2(c)(1).
When a lawyer files a claim of disability, the lawyer waives any privilege between the accused and any doctor or hospital that has treated the accused during the period of alleged disability. BR 3.2(g)(1). The supreme court may also order that the accused be examined by a physician or other expert. BR 3.2(b)(1), 3.2(c)(2).
The Oregon Supreme Court may stay the disciplinary proceeding pending a decision on the accused’s petition or, if the accused is found disabled, order it suspended or held in abeyance until further notice. BR 3.2(b)(3); Matter of Keil, 800 P2d 144 (Kan 1990); Matter of Morris, 775 P2d 1257 (Kan 1989); Matter of Gooding, 775 P2d 1257 (Kan 1989). If the accused is unrepresented, the court can appoint a lawyer to represent the accused and can appoint a lawyer or lawyers to inventory the accused’s client files and take such action as is necessary to protect the interests of those clients. BR 3.2(d)-(e); EOL § 21.23.
Civil immunity exists for participants in the disciplinary process. ORS 9.537; EOL § 21.25; see also Leveque, 126 Or App at 16 (attorney’s response to Bar complaint is absolutely privileged if response has “some relation” to allegations); cf. In re Adams, 293 Or 727, 652 P2d 787 (1982).
Pursuant to BR 3.1, the SPRB can petition the supreme court to suspend a lawyer pending the final resolution of his or her disciplinary proceeding. EOL § 21.26. A lawyer suspended under this rule must take all reasonable steps to avoid foreseeable prejudice to his or her clients. BR 3.1(f), 6.3(a)-(b).
Under BR 3.2(a), the supreme court, upon ex parte application by the OSB, may summarily place a lawyer on inactive status. If a court of competent jurisdiction finds that an accused lawyer is mentally ill or incapacitated, the OSB may apply ex parte to the supreme court to place the lawyer on inactive membership status. EOL § 21.27.
The OSB may also petition the Oregon Supreme Court to determine that an accused lawyer is disabled from continuing to practice law due to a personality disorder, mental infirmity or illness, senility, or addiction to drugs, narcotics, or intoxicants. BR 3.2(b).
In Oregon, lawyers must report to the OSB the initiation of any disciplinary proceedings against them in any other jurisdiction within 30 days of a lawyer’s receipt of notice of the commencement of such proceedings. EOL § 21.20; see also DR 1-103(D); In re Devers, 317 Or 261, 855 P2d 617 (1993) (reciprocal discipline arising from suspension in Michigan); People v. Hedicke, 785 P2d 918 (Colo 1990). Disciplinary counsel must then report the discipline of the lawyer to the SPRB and the supreme court. BR 3.5(a). The SPRB will then recommend what discipline should be imposed in Oregon and whether the OSB should recommend to the supreme court the temporary suspension of the lawyer pending the disposition of the inquiry into the sanction imposed in the other jurisdiction. Disciplinary counsel then forwards the SPRB’s recommendations to the supreme court with a copy of the disciplinary judgment. Id.
A plea of no contest, a stipulation for discipline, or a resignation while formal charges are pending in another jurisdiction shall be considered a judgment or order of discipline for purposes of BR 3.5(a). BR 3.5(b) states that a copy of the judgment, order, or determination of discipline is sufficient evidence that the lawyer committed the misconduct described. EOL § 1.30.
BR 6.1 identifies the four basic options in Bar disciplinary proceedings: dismissal of all charges, public reprimand, suspension, and disbarment. The sanctions are imposed on a cumulative basis. In other words, if a lawyer is found guilty of multiple rule violations, the lawyer cannot be reprimanded for one violation and suspended for another. See, e.g., In re Howard, 304 Or 193, 743 P2d 719 (1987); EOL § 21.31.
Following a determination that a lawyer should otherwise be suspended from the practice of law for a period of time, a lawyer may be placed on probation up to three years. BR 6.2; EOL § 21.32. Imposing probation does not prevent automatic review by the supreme court. BR 6.2(a). Indeed, if the underlying suspension is more than six months, the supreme court must review the case.
A trial panel decision for probation may include alcohol or drug treatment, medical care, psychological or psychiatric treatment, professional office or management counseling, and the submission of periodic audits and reports as conditions of employment. Id.; see, e.g., In re Paauwe, 298 Or 215, 691 P2d 97 (1984). While on probation, the disciplined lawyer is usually monitored by another lawyer who is appointed by the state chairperson of the OSB Disciplinary Board or by the Oregon Supreme Court. The lawyer on probation must cooperate with the appointed monitor. BR 6.2(a); EOL § 21.32.
Disciplinary counsel may seek revocation of the probation if a lawyer violates the terms of probation. See, e.g., State ex rel OSB v. Hollingsworth, 286 Or 477, 595 P2d 484 (1979). The conduct that is alleged in the petition to revoke probation may itself be the basis for the OSB initiating additional disciplinary charges. BR 6.2(d).
By the time of the effective date of the suspension or disbarment, a suspended or disbarred lawyer must stop practicing law and must take “all reasonable steps to avoid foreseeable prejudice” to the rights of his or her clients. BR 6.3(a)-(b); EOL § 21.33. To qualify for reinstatement, the lawyer must attest that he or she has not engaged in the practice of law while suspended or disbarred. See, e.g., BR 8.1(a), 8.2(a), 12.9; see also In re Kraus, 295 Or 743, 670 P2d 1012 (1983). Failure to comply with requirements of BR 6.3 may cause disciplinary counsel to petition the supreme court to hold a suspended or disbarred lawyer in contempt. BR 6.3(c).
BRs 8.1, 8.2, and 8.3 establish the guidelines for reinstatement following suspension or disbarment. A lawyer suspended for six months or less must submit a compliance affidavit affirming, in part, that the lawyer did not engage in the practice of law and complied with any applicable terms of probation. BR 8.3. Lawyers who have been disbarred or have resigned must file an application for reinstatement. BRs 8.1, 8.2.
Lawyers who engage in criminal conduct can be disciplined under either ORS 9.527(2) or DR 1-102(A)(2) or both. See also DR 7-102(A)(7), (8). Discipline under ORS 9.527(2) requires a criminal conviction, while DR 1-102(A)(2) does not. See, e.g., In re Taylor, 316 Or 431, 851 P2d 1138 (1993) (accused disbarred for federal drug and tax evasion convictions); In re Martin, 308 Or 125, 775 P2d 842 (1989) (disbarment for two felony bribery convictions); In re Nash, 299 Or 310, 702 P2d 399 (1985) (disbarment following conviction of first-degree sodomy with minor); In re DesBrisay, 288 Or 625, 606 P2d 1148 (1980) (discipline based on tax evasion conviction). See also BR 3.3(a); EOL § 21.28.
When the OSB learns that criminal charges that could lead to discipline have been filed against a lawyer, disciplinary counsel typically reviews each such matter and monitors the criminal case to determine the disposition of the charges. Following a conviction, disciplinary counsel reports the matter to the SPRB.
BR 3.4 outlines the procedure used to determine whether a conviction should give rise to discipline. After disciplinary counsel reports the conviction to the SPRB, disciplinary counsel must also inform the supreme court of the conviction and must notify the court whether OSB seeks a temporary suspension. BR 3.4(a).
Whether or not the court imposes a temporary suspension, the convicted lawyer is referred to the OSB Disciplinary Board for a hearing before a trial panel. BR 3.4(e). The trial panel must determine what discipline, if any, should be imposed for the lawyer’s conviction. Conviction proceedings generally follow the same procedural rules applicable to other disciplinary proceedings. See 0.2:240; see also Desk Reference § 6.13.3.
The SPRB may also initiate formal disciplinary charges against a lawyer based on the lawyer’s underlying conduct. Such charges must be consolidated for hearing with the conviction proceeding. BR 3.4(f).
The reversal of a conviction or the grant of a new trial does not require the termination of any disciplinary proceeding arising from the facts that underlie the criminal conviction.
Under ORS 9.527(2), a lawyer may be disciplined if convicted of “a misdemeanor involving moral turpitude.” To constitute a crime involving moral turpitude under ORS 9.527(2), the conduct must (1) be intentional or knowing and (2) involve dishonesty, fraud, or deceit or (3) involve harm to a specific victim. EOL § 21.29; In re Chase, 299 Or 391, 702 P2d 1082 (1985). Although criminal conduct undertaken for personal gain may constitute a crime involving moral turpitude, the court held that attempted possession of cocaine for apparent personal use did not give rise to discipline under ORS 9.527(2). Accord In re Drakulich, 299 Or 417, 702 P2d 1097 (1985); see In re Howser, 6 DB Rptr 21 (1992) (misdemeanor conviction of failure to perform duties of driver when property was damaged did not support discipline); In re McAlister, 6 DB Rptr 1 (1992) (misdemeanor conviction of distribution of child pornography supported reprimand); In re Joiner, 9 DB Rptr 209 (1995) (misdemeanor rape resulted in a 24-month suspension); In re Sonderen, 303 Or 129, 734 P2d 348 (1987) (misdemeanor driving while suspended did not result in discipline). See EOL § 21.29 (additional cases).
Oregon attorneys are subject to contempt of court proceedings in appropriate cases. State v. Jones, 279 Or 55, 60, 566 P2d 867 (1977). Oregon attorneys are also subject to sanctions in state court pursuant to authorities including, but not limited to, ORCP 17 (similar to FRCP 11).
Civil liability of lawyers in Oregon falls under the negligence standard of legal malpractice. EOL § 19.2. Generally, violation of a DR does not constitute malpractice per se. EOL §§ 19.8, 20.5. Neither ORS chapter 9 nor the DRs create a private cause of action. Bob Godfrey Pontiac v. Roloff, 291 Or 318, 331-32, 630 P2d 840 (1981); Clausen v. Carstens, 83 Or App 112, 120, 730 P2d 604 (1986).
There is one federal district court in Oregon: the U.S. District Court for the District of Oregon. The district court holds continuous sessions in Portland, Eugene, and Medford and has additional courthouses in Coquille, Klamath Falls, and Pendleton. Local Rules of Practice and Procedure for the U.S. District Court for the District of Oregon (LR) 3.3. The U.S. Court of Appeals for the Ninth Circuit has a courthouse in Portland.
LR 83.7 provides that “[e]very attorney admitted to general or special practice and every law student appearing pursuant LR 83.5 must:
“(a) Be familiar and comply with the standards of professional conduct required of members of the Oregon State Bar;
“(b) Maintain the respect due courts of justice and judges;
“(c) Perform with honesty, care, and decorum required for the fair and efficient administration of justice; and
“(d) Discharge the obligations owed to their clients and to the court; and assist those in need of counsel when requested by the court.”
0.3:300 Organization of This Library and the Model Rules
This library will follow the outline of the State Legal Ethics Project, which, in turn, follows the ABA Model Rules. However, the State Legal Ethics Project extends beyond the ABA Model Rules to include other concepts and standards governing lawyer conduct.
0.4:400 Abbreviations, References and Terminology
ABA Standards ABA Standards for Imposing Lawyer Sanctions
BR Oregon State Bar Rules of Procedure
CJC Oregon Code of Judicial Conduct
DB Rptr Disciplinary Board Reporter
Rules of the Oregon
EC Ethical Considerations
FRCP Federal Rules of Civil Procedure
LPRC Local Professional Responsibility Committee
Rules of Practice and Procedure for the U.S.
MC DR Model Code of Professional Responsibility Disciplinary Rules
MR ABA Model Rules of Professional Conduct
OEC Oregon Evidence Code
ORAP Oregon Rules of Appellate Procedure
ORCP Oregon Rules of Civil Procedure
ORS Oregon Revised Statutes
OSB Oregon State Bar
SPRB State Professional Responsibility Board
Oregon has no definition for these terms.
“Law firm” or “firm” as used in the DRs means “a proprietorship, partnership or professional legal corporation engaged in the practice of law.” DR 10-101(C). “Law firm” or “firm” also includes a law department of a corporation or government agency, a private or public legal aid or public defender organization, and a public interest law firm. Id.; see also OSB Legal Ethics Op No 1994-138 (legal aid service is “firm” or “law firm” within this definition).
“Professional legal corporation” as used in the DRs means “a corporation, or an association treated as a corporation, authorized to practice law.” DR 10-101(F).
“Firm member” or “member of a firm” as used in the DRs means “a partner, a shareholder, an associate, or a lawyer serving as ‘Of Counsel’.” DR 10-101(A). “Any other lawyer, including an office sharer or a lawyer working for or with a firm on a limited basis, is not a ‘firm member’ or ‘member of a firm’ absent indicia sufficient to establish a de facto law firm among the lawyers involved.” Id.; see EOL §§ 16.1, 16.6-.7; see also OSB Legal Ethics Op No 1991-50 (requirements for lawyers who share offices and do not wish to be regarded as firm members or members of firm).
“Fraud” and “deceit” as used in the DRs refer to the common law torts of fraud and deceit, and “require among other things, a false representation to another, with the intent that the other act upon the false representation to his or her damage.” In re Hockett, 303 Or 150, 158, 734 P2d 877 (1987); Rice v. McAlister, 268 Or 125, 128, 519 P2d 1263 (1974); see also DR 1-102(A)(3).
“Dishonesty” as used in the DRs means a “‘[d]isposition to lie, cheat or defraud; untrustworthiness; lack of integrity.’” In re Hockett, 303 Or at 158 (quoting Black’s Law Dictionary 421 (5th ed 1979)); see DR 1-102(A)(3).
“Misrepresentation” as used in the DRs means a representation made with either knowledge of its falsity or an awareness of a lack of knowledge as to the truth or falsity. “Misrepresentation” can include nondisclosure or the failure to correct a false impression. For instance, the failure to correct an innocently created misunderstanding once the lawyer learned of the existence of the misunderstanding can be a misrepresentation. A “misrepresentation” becomes “fraud” or “deceit” when it is intended to be acted upon without being discovered. See In re Claussen, 322 Or 466, 480-81, 909 P2d 862 (1996) (knowing failure to disclose material fact); In re Williams, 314 Or 530, 536-37, 840 P2d 1280 (1992) (failure to correct representation that was true when made but is no longer true); In re Boardman, 312 Or 452, 456-57, 822 P2d 709 (1991) (knowing failure to correct false impression); In re Hiller, 298 Or 526, 532-34, 694 P2d 540 (1985) (lawyer must have had undisclosed fact in mind and knowingly failed to disclose it); In re Greene, 290 Or 291, 298, 620 P2d 1379 (1980) (half-truth or silence can be misrepresentation).
“Knowingly” or “with knowledge” means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.
“Partner” as used in the DRs “includes a shareholder in a professional legal corporation.” DR 10-101(D).
Oregon has no specific definition of this term for disciplinary purposes.
Oregon has no specific definition of this term for disciplinary purposes.
Oregon has no specific definition of this term for disciplinary purposes.
0.4:500 Additional Definitions in Oregon
“Full disclosure” means an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent. DR 10-101(B)(1). As used in DR 5-101, 5-104(A), 5-105, 5-107(A), or 5-109 or when a conflict of interest may be present in DR 4-101, full disclosure shall also include a recommendation that the recipient seek independent legal advice to determine if consent should be given. Full disclosure shall be contemporaneously confirmed in writing. DR 10-101(B); see also EOL §§ 7.6, 11.14, 12.6, 12.17.
“Tribunal” means “all courts and all other adjudicatory bodies.” DR 10-101(H).