Innovations of Note
On September 27, 2019 the Oregon State Bar Board of Governor’s approved (1) a recommendation that the state create a licensed paraprofessional program and (2) a recommendation that would create a path to a law license without attending law school. The recommendations still need to be approved by the Oregon Supreme Court before they take effect. Source: Bob Ambrogi Law Sites.
Change Log Entries
Differences from ABA Model Rules
|Rule 1.2(c) Limited Scope||Minor Clerical Changes|
|Rule 5.4(a) Fee-Sharing||Significant Changes|
|Rules 5.4(b)-(d) Non-Lawyer Ownership||Significant Changes|
|Rule 5.5. Unauthorized Practice of Law||Significant Changes|
|Rule 5.7 Law Related Services||Does Not Have|
|Rule 6.5 Limited Scope||Same as Model Rule|
|Rule 7.2(b) Lawyer Referral||Significant Changes|
|Cloud Computing Advisory||Yes|
|Technology Competency Rules||No|
ABA Rule 1.2(c) (Limited Scope)
Same as Model Rule renumbered to (b)
Oregon State Bar Association Formal Opinion No. 2011-183 (Limited scope representation is expressly allowed by Oregon RPC 1.2(b) and clarifies that an attorney may limit representation to certain actions or to certain issues. Communication is addressed and attorneys are encouraged to use written engagement letter to minimize risks associated with providing limited scope representation.)
ABA Rule 5.4(a) (Fee-sharing)
RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm or firm members may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons.
(2) a lawyer who purchases the practice of a deceased, disabled,or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price.
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter; and
(5) a lawyer may pay the usual charges of a bar-sponsored or operated not-for-profit lawyer referral service, including fees calculated as a percentage of legal fees received by the lawyer from a referral.
ABA Rule 5.4(b – d) Non-lawyer ownership
RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation, except as authorized by law; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
(e) A lawyer shall not refer a client to a nonlawyer with the understanding that the lawyer will receive a fee, commission or anything of value in exchange for the referral, but a lawyer may accept gifts in the ordinary course of social or business hospitality
ABA Rule 5.5 (UPL)
5.5UNAUTHORIZED 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.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternate dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission;
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; or
(5) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.
(d) A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.
(e) A lawyer who provides legal services in connection with a pending or potential arbitration proceeding to be held in his jurisdiction under paragraph (c)(3) of this rule must, upon engagement by the client, certify to the Oregon State Bar that:
(1) the lawyer is in good standing in every jurisdiction in which the lawyer is admitted to practice; and
(2) unless the lawyer is in-house counsel or an employee of a government client in the matter, that the lawyer
(i) carries professional liability insurance substantially equivalent to that required of Oregon lawyers, or
(ii) has notified the lawyer’s client in writing that the lawyer does not have such insurance and that Oregon law requires Oregon lawyers to have such insurance. The certificate must be accompanied by the administrative fee for the appearance established by the Oregon State Bar and proof of service on the arbitrator and other parties to the proceeding.
Or. Ethics Op. 2005-103 (2005) (multistate firm may advertise to Oregon clients the availability of firm lawyers not admitted to Oregon bar if firm makes clear that non-Oregon lawyers would be available to render legal services only as allowed by Rule 5.5(c) and (d)).
Oregon State Bar v. Smith, 942 P.2d 793 (Or. 1997) (“‘practice of law’ means the exercise of professional judgment in applying legal principles to address another person’s individualized needs through analysis, advice, or other assistance”)
In re Devers, 974 P.2d 191 (Or. 1999) (suspended lawyer engaged in unauthorized practice by negotiating and drafting settlement agreement during period of suspension)
Oregon State Bar v. Sec. Escrows Inc., 377 P.2d 334 (Or. 1962)
Oregon State Bar v. Gilchrist, 538 P.2d 913 (Or. 1975). (the advertising and sale of generic do-it-yourself legal kits do not, without more, constitute the unauthorized practice of law.)
Oregon State Bar v. John H. Miller & Co., 385 P.2d 181 (Or. 1963).
Oregon State Bar v. Smith, 942 P.2d 793 (Or. 1997) (“mere general dissemination of legal information by nonlawyers does not constitute the unauthorized practice of law,” but more personal contact and advice may properly be enjoined; court upheld injunction of paralegal service barring it from giving legal advice and assisting in preparation and selection of legal documents)
ABA Rule 5.7 (Law Related Services)
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
ABA Rule 7.2(b) (Lawyer referral)
RULE 7.2 ADVERTISING
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a lawyer referral service; and
(3) pay for a law practice in accordance with Rule 1.17.
Or. Ethics Op. 2005-73 (2005) (lawyer may accept referrals from friends, acquaintances, and clients only if lawyer does not request referrals and does not compensate individuals for their referrals)
Or. Ethics Op. 2007-180 (2007) (lawyer may pay agency for online listing in its directory of lawyers if fee not based upon number of referrals, retained clients, or revenue generated by lawyer’s listing),
Opinion 2011-188 http://www.osbar.org/_docs/ethics/2011-188.pdf
Reasonable care standard
- Ensure service agreement requires vendor to preserve confidentiality and security.
- Require notice in the event that lawyer’s data is accessed by a non-authorized party.
- Ensure adequate backup.
- Re-evaluate precautionary steps periodically in light of advances in technology
Does not require.