The Regulatory Process

1. The Regulatory Process 1. Statistics first. 2. Responsibilities of the Client Assistance Office and the Disciplinary Counsel’s Office. 3. Tips on helping yourself. a. Cooperate and be truthful. b. Hire counsel or proceed on your own? c. Confidential information and Oregon RPC 1.6. Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (5) to comply with other law, court order, or as permitted by these Rules; or Amended 12/01/06: Paragraph (b)(6) amended to substitute “information relating to the representation of a client” for “confidences and secrets.”

2. The Regulatory Process d. OEC 503 and Comment (b) and Swindler & Berlin v U.S. 524 U.S. 899 (1998). Normally the lawyer-client privilege survives the death of the client and may be asserted by the client’s representative under subsection (3) of this rule… See Also: The Secrets We Keep: A Review of the Duty of Confidentiality, OSBB March/April 2004. e. Must you withdraw when a client files a bar complaint against you? Oregon RPC 1.6 and see: In re Knappenberger, 337 Or 15 (2004) and In re Obert, 336Or 640 (2004). See also: When is Withdrawal Warranted? Representing Clients Who File Claims Against You, OSBB January 2010; Oregon Formal Ethics Opinion 2009-182; and Oregon Formal Ethics Opinion 2011-185. f. Billing for responding to a bar complaint. See: In re Paulson, 335 Or 436 (2003).

3. The Repudiating Client and Oregon RPC 1.2 and 1.16(b) Rule 1.2 Scope of Representation and allocation of authority between client and lawyer (a) Subject to paragraphs (b) and (c), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

4. The Repudiating Client and Oregon RPC 1.2 and 1.16(b) Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal property and money of the client to the extent permitted by other law.

5. The Repudiating Client and Oregon RPC 1.2 and 1.16(b) • Oregon RPC 8.6 Rule 8.6 Written Advisory Opinions on Professional Conduct; Consideration Given in Disciplinary Proceedings (a) The Oregon State Bar Board of Governors may issue formal written advisory opinions on questions under these Rules. The Oregon State Bar Legal Ethics Committee and General Counsel’s Office may also issue informal written advisory opinions on questions under these Rules. The General Counsel's Office of the Oregon State Bar shall maintain records of both OSB formal and informal written advisory opinions and copies of each shall be available to the Oregon Supreme Court, Disciplinary Board, State Professional Responsibility Board, and Disciplinary Counsel. The General Counsel's Office may also disseminate the bar's advisory opinions as it deems appropriate to its role in educating lawyers about these Rules. (b) In considering alleged violations of these Rules, the Disciplinary Board and Oregon Supreme Court may consider any lawyer's good faith effort to comply with an opinion issued under paragraph (a) of this rule as: (1) a showing of the lawyer's good faith effort to comply with these Rules; and (2) a basis for mitigation of any sanction that may be imposed if the lawyer is found to be in violation of these Rules. (c) This rule is not intended to, and does not, preclude the Disciplinary Board or the Oregon Supreme Court from considering any other evidence of either good faith or basis for mitigation in a bar disciplinary proceeding.

6. The Repudiating Client and Oregon RPC 1.2 and 1.16(b) …and “The Question”: Lawyer: I’m having a problem with my client. Last week he authorized me to accept a settlement offer. The documents are here, and are consistent with our agreement but now the client refuses to sign. He says he’s changed his mind and will take his chances at trial. This is very frustrating and I think I should get off the case. General Counsel: Why would you need to get off the case? Lawyer: Well, I think I have a conflict of interest. I worked really hard to get that offer for the client and I think it’s in his best interest to accept. The likelihood of doing better at trial isn’t good. I think the client is being unreasonable. So, can I withdraw? General Counsel: Let’s talk. 2. Practical considerations. When a Client Repudiates a Settlement, What Can You Do? OSBB May 2008.

7. Competence, Neglect and Diligence • The basic rules: Oregon RPC 1.1, 1.3 and 1.4(a) & (b). Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.3 Diligence A lawyer shall not neglect a legal matter entrusted to the lawyer. Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

8. Competence, Neglect and Diligence 2. What do they require? a. Competency is a fact specific inquiry. The court usually only finds a violation when the bar can show by clear and convincing evidence that there is a lack of basic knowledge or preparation. This case has a good discussion of where the court has found that a lawyer is not competent and where it has not: In re Gastineau, 317 Or 545 (1993). b. In In re Eadie, 333 Or 42 (2001), the lawyer was suspended for three years for, among other things, failing to competently represent a client. He failed to order transcripts, prepare expert witnesses, tried to get witnesses to testify about things they did not know, made unfounded objections and repeatedly tried to interject the issue of insurance into the trial after repeated warnings by the court. The court noted that to find a violation of the neglect rule (Oregon RPC 1.3), the bar must show a course of negligent conduct. c. In the domestic relations contest, the court held that neglect is the failure to act or the failure to act diligently. While it appeared the lawyer did little to prepare for trial, the court held that he had worked on the client’s matter and that it was his view that it was a particular kind of case (short-term marriage) that drove his preparation. It held that the bar did not prove by clear and convincing evidence that the lawyer was not competent. This case confirms that competency issues are fact specific and difficult for the bar to prove. In re Magar, 335 Or 306 (2003).

9. Competence, Neglect and Diligence d. While the Oregon Supreme Court did not adopt the official comment to the ABA Model Rule version of 1.4, it provides some guidance in understanding the duty of communication. It says: The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursed, to the extent the client is willing and able to do so….Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter….The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation….Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. e. The duty of communication does not require that lawyers respond to every single phone call from a client. Although Oregon had no explicit rule regarding communication until January 1, 2005, the Oregon Supreme Court has long acknowledged that lawyers have a duty to communicate with their lawyers using the former neglect of a legal matter as the basis for that holding. In re Chandler, 306 Or 422 (1982). A lawyer is not subject to discipline for not responding to a client as often as the client requested or would have preferred as long as the lawyer keeps the client adequately informed of the progress of the case. In re Walker, 293 Or 297 (1982).

10. Competence, Neglect and Diligence f. Bottom line: To meet an expectation, you must set an expectation. (See the Cooperation Clause attached). COOPERATION You agree to fully cooperate with the Firm and others working on your case. You will keep the firm advised of all matters which may have a bearing on your case, be truthful with the Firm at all times, follow through with all agreements made with the Firm, keep appointments, give depositions, produce documents, respond promptly to the Firm’s letters, calls and emails, appear for scheduled court appearances, and keep the Firm informed of any change of your address or telephone number or employment within five days of the change. 3. Diligence re social media advice.

11. Communication with Represented Party – ORPC 4.2 Rule 4.2 Communication with Person Represented by Counsel In representing a client or the lawyer's own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other person; (b) the lawyer is authorized by law or by court order to do so; or (c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person's lawyer.

12. Communication with Represented Party – ORPC 4.2 HYPOTHETICAL A: RENEGING ON SETTLEMENT 1. Parties negotiate a full divorce settlement. 2. A week later your client tells you that he cannot go through with the deal for a variety of reasons. 3. You believe the deal is in your client’s best interest. 4. No misrepresentations of newly discovered evidence and full discovery. 5. Can you advise your client that you will withdraw from further representation if the client insists upon reneging? 6. If the client insists on reneging may you withdraw and your fee agreement allows for withdrawal under these circumstances may you withdraw? 7. What if trial is set in two weeks and it is unlikely the court will grant a further set over.

13. Fees, Fee Arrangements and Fee Disputes • The basic rule: Oregon RPC 1.5. Rule 1.5 Fees (a) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee or a clearly excessive amount for expenses. (b) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

14. Fees, Fee Arrangements and Fee Disputes Rule 1.5 Fees (continued) (c) A lawyer shall not enter into an arrangement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of spousal or child support or a property settlement; (2) a contingent fee for representing a defendant in a criminal case; or (3) a fee denominated as "earned on receipt," "nonrefundable" or in similar terms unless it is pursuant to a written agreement signed by the client which explains that: (i) the funds will not be deposited into the lawyer trust account, and (ii) the client may discharge the lawyer at any time and in that event may be entitled to a refund of all or part of the fee if the services for which the fee was paid are not completed. (d) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the client gives informed consent to the fact that there will be a division of fees, and (2) the total fee of the lawyers for all legal services they rendered the client is not clearly excessive. (e) Paragraph (d) does not prohibit payments to a former firm member pursuant to a separation or retirement agreement, or payments to a selling lawyer for the sale of a law practice pursuant to Rule 1.17. 

15. Fees, Fee Arrangements and Fee Disputes 2. The “flat fee/earned upon receipt” and Oregon RPC 1.5(3). (3) the fee customarily charged in the locality for similar legal services; 3. Division of fee between lawyers who are not in the same firm. Oregon RPC 1.5(d). (d) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the client gives informed consent to the fact that there will be a division of fees, and (2) the total fee of the lawyers for all legal services they rendered the client is not clearly excessive. 4. Benefits of the written fee contract. 5. Consistency and fee enforcement and the Waiver of Strict Performance Clause. WAIVER OF STRICT PERFORMANCE CLAUSE You acknowledge that failure of the Firm at any time to require strict performance of any provision of this Agreement shall not limit the Firm’s right to enforce the provision, nor shall any waiver of the Firm of any breach of any provisions constitute a waiver of or prejudice the Firm’s right otherwise to demand strict performance of the provision or any other provision of this Agreement.

16. Fees, Fee Arrangements and Fee Disputes e. Voluntary fee arbitration, lawsuits and malpractice. f. Withdrawing from representation for unpaid fees. See: Oregon Formal Ethics Opinion 2005-1. See also the Termination of Attorney-Client Relationship Clause. TERMINATION OF ATTORNEY-CLIENT RELATIONSHIP You retain the right at any time to terminate the Firm’s services on your behalf by delivering a signed letter notifying the Firm of the termination of the attorney-client relationship. You remain liable for all attorney fees incurred and costs advanced through the time such letter is received. The Firm retains the right to with withdraw as attorneys for you at any time, for any reason, including, but not limited to, nonpayment of attorney fees and costs due or failure to reasonably cooperate, as stated above, of follow the advice of your attorney. In order to afford you an opportunity to obtain other representation, the Firm will not withdraw during or immediately prior to trial or hearing without written notice to you and approval by the court. In the event of discharge by you or withdrawal by the Firm, the Firm shall refund to you such part of the retainer as has not been earned by the Firm. 6. Changing the terms of the fee agreement and fee disputes. a. Client consent. See: Oregon Formal Ethics Opinion 2005-97. b. Charging more than an agreed upon fee. In re Yacob, 318 Or 10 (1993). c. Preparing a motion to withdraw and to bill or not to bill. In re Paulson, 335 Or 436 (2003).

17. Fees, Fee Arrangements and Fee Disputes d. Defining the scope of representation. Oregon RPC 1.2. See also, Oregon Formal Ethics Opinion 2011-183. (Unbundling of services.) Rule 1.2 Scope of Representation and allocation of authority between client and lawyer (a) Subject to paragraphs (b) and (c), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

18. Fees, Fee Arrangements and Fee Disputes g. Withholding client files for non-payment. See: Oregon Formal Ethics Opinion 2005-125. Liens against client’s real property. See: Attorney’s Lien Clause. ATTORNEY’S LIEN You acknowledge that Oregon law provides for the creation of two different attorney liens in favor of the Firm. The first gives the Firm a lien for fees and costs upon all of your papers, personal property and money in the Firm’s possession. The second gives a lien upon actions, suits and proceedings, including your domestic relations case filed with the court, and judgments, orders and awards entered in your case in your favor, including, but not limited to, real property and the proceeds thereof, for unpaid fees and costs owed to the Firm, but does not include orders for the payment of child support or spousal support. Client acknowledges and agrees that the Firm may, at the Firm’s discretion, exercise its rights under either lien at any time as provided by law.

19. Fees, Fee Arrangements and Fee Disputes h. Limiting or purporting to limit a current or former client’s right to file or pursue a complaint with the Oregon State Bar. Oregon RPC 1.8(h)(4). Rule 1.8 Conflict of Interest: Current Clients: Specific Rules (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith; (3) enter into any agreement with a client regarding arbitration of malpractice claims without informed consent, in a writing signed by the client; or (4) enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or to pursue any complaint before the Oregon State Bar. i. Practical Consideration: The inclusion of the attorney’s lien provision in the fee contract.

20. Social Media and Internet Advertising and Marketing 1. Internet advertising and the ethical rules on advertising. See: What Hath the Web Wrought? Advertising in the Internet Age, OSBB May 2011. See also: Oregon Formal Ethics Opinion 2007-180. 2. Internet Marketing: Rules of the Road, OSBB January 2008. 3. Social Media for Lawyers: A Word of Caution, OSBB November 2009. • Ethics rules pertaining to internet advertising • Advertising v. referrals for pay • Responsibility for content

21. Responsibilities of Supervisory Lawyers, Subordinate Lawyers and Non-Lawyer Assistants and UPL Issues 1. Responsibilities of partners, managers, and supervisory lawyers. Oregon RPC 5.1. Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers A lawyer shall be responsible for another lawyer's violation of these Rules of Professional Conduct if: ( a) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or ( b) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 2. Responsibilities of a subordinate lawyer. Oregon RPC 5.2. Rule 5.2 Responsibilities of a Subordinate Lawyer (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

22. Responsibilities of Supervisory Lawyers, Subordinate Lawyers and Non-Lawyer Assistants and UPL Issues 3. Responsibilities regarding non-lawyer assistants. Oregon RPC 5.3. Rule 5.3 Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained, supervised or directed by a lawyer: (a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (b) except as provided by Rule 8.4(b), a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 4. UPL implications under Oregon RPC 5.5(a). Rule 5.5 Unauthorized Practice of Law; multijurisdictional practice (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. 5. See, generally, Oregon Formal Ethics Opinion 2005-20 and 2005-24.

23. Miscellaneous Issues and Wrap-Up 1. Oregon RPC 1.8 and advancing expenses. See Oregon Formal Ethics Opinion 2005-4. 2. Representing one spouse in a domestic relations matter after joint estate planning. See Oregon Formal Ethics Opinion 2005-148. 3. Agreements regarding arbitration of malpractice claims. Oregon RPC 1.8(h)(3). • Problems arising with “prospective clients” and Oregon RPC 1.18. Rule 1.18 Duties to Prospective Client (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter; and (ii) written notice is promptly given to the prospective client

24. Miscellaneous Issues and Wrap-Up • The scope of the communication with a represented person rule. Oregon RPC 4.2 and See, In re Newell, 348 Or 396 (2010). Rule 4.2 Communication with Person Represented by Counsel In representing a client or the lawyer's own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other person; (b) the lawyer is authorized by law or by court order to do so; or (c) a written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person's lawyer. 6. Practical Considerations: See Hypothetical B and Oregon Formal Ethics Opinion 2005-147. HYPOTHETICAL B: DIRECT COMMUNICATION BETWEEN CLIENTS 1. Lawyer A represents Client A who is getting divorced from Client B. 2. Client B is represented by Lawyer B. 3. Client A wishes to engage in direct settlement negotiations directly with Client B. Question: May Lawyer A allow Client to negotiate directly Client B about the matter while Client B is represented by counsel in the matter?