February 22, 2013 - Oregon State Bar
February 22, 2013 - Oregon State Bar
February 22, 2013 - Oregon State Bar
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Board of Governors Agenda — Proposed Amendment to <strong>Oregon</strong> RPC 1.10(c)<br />
<strong>February</strong> <strong>22</strong>, <strong>2013</strong> Page 4<br />
request of the former client, such affidavit shall be updated periodically<br />
to show actual compliance with the screening procedures. The law firm,<br />
the personally disqualified lawyer, or the former client may seek judicial<br />
review in a court of general jurisdiction of the screening mechanism used,<br />
or may seek court supervision to ensure that implementation of the<br />
screening procedures has occurred and that effective actual compliance<br />
has been achieved.”<br />
According to the Comment to Washington’s rule, these requirements were added in 2011 in an<br />
effort to align Washington’s long-standing screening rule with the ABA Model Rule. The<br />
Comment also cautions that, “prior to undertaking the representation, non-disqualified firm<br />
members must evaluate the firm's ability to provide competent representation even if the<br />
disqualified member can be screened in accordance with this Rule.”<br />
Options for Amending <strong>Oregon</strong>’s Rule<br />
The Legal Ethics Committee recognized the problem with <strong>Oregon</strong>’s rule, with its focus<br />
on notice to the disqualified lawyer’s former law firm and the underlying assumption that the<br />
firm continues to represent the client.<br />
The simplest change that would eliminate the problem would be to amend<br />
subparagraphs (1) and (2) to substitute “former client” for “former law firm:”<br />
(1) the personally disqualified lawyer shall serve on the lawyer's former [law<br />
firm] client an affidavit attesting that during the period of the lawyer's<br />
disqualification the personally disqualified lawyer will not participate in any<br />
manner in the matter or the representation and will not discuss the matter or<br />
the representation with any other firm member; and the personally disqualified<br />
lawyer shall serve, if requested by the former [law firm] client, a further<br />
affidavit describing the lawyer's actual compliance with these undertakings<br />
promptly upon final disposition of the matter or representation;<br />
(2) at least one firm member shall serve on the former [law firm] client an<br />
affidavit attesting that all firm members are aware of the requirement that the<br />
personally disqualified lawyer be screened from participating in or discussing<br />
the matter or the representation and describing the procedures being followed<br />
to screen the personally disqualified lawyer; and at least one firm member shall<br />
serve, if requested by the former [law firm] client, a further affidavit describing<br />
the actual compliance by the firm members with the procedures for screening<br />
the personally disqualified lawyer promptly upon final disposition of the matter<br />
or representation; and<br />
On the other hand, the LEC believes this may be an opportunity to simplify <strong>Oregon</strong>’s rule<br />
and require only that the personally disqualified lawyer be screened and that any affected<br />
client is given prompt notice, leaving the mechanics of the screening to the lawyer and the new<br />
firm:<br />
When a lawyer becomes associated with a firm, no lawyer associated in the firm shall<br />
knowingly represent a person in a matter in which that lawyer is disqualified under Rule
Change language