February 22, 2013 - Oregon State Bar

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$P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar$

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BOG Agenda Memo — Proposal to Amend Oregon’s Advertising Rules February 22, 2013 Page 2 RPCs based on the ABA Model Rules, the drafting group opted to leave the advertising rules largely as they were at the time, with the idea that they could be tackled separately at a later date. The 2009 Task Force operated on the assumption that the principal purpose of the rules on advertising and solicitation is an assurance that those communications be truthful and not misleading. It did not believe that efforts to protect some groups of lawyers from potential competition, to regulate “good taste,” or to keep the public ignorant of their potential rights are proper purposes for professional regulation in Oregon. The Task Force also believed that the prohibitions involving duress or harassment and against further contact with individuals who have made known a desire not be contacted are appropriate and should continue. The LEC shared the 2009 Task Force’s view on those issues, particularly the view that the detail in RPC 7.1 was confusing, inadequate and unhelpful. The LEC concluded that adoption of the ABA Model Rules 7.1-7.5 (with some variations), Oregon will retain the important existing provisions, while providing clearer and simpler guidance to practitioners. The LEC also shared the 2009 Task Force’s view that interpretive guidance should be provided in formal ethics opinions. The changes wrought by adopting ABA Model Rules 7.1-7.5 are for the most part stylistic although a few are more substantive. The attached chart shows a rule-by-rule comparison with brief accompanying explanations. Also attached is a copy of the report of the 2009 Advertising Task Force.
PROPOSED OREGON RPCS 7.1 THROUGH 7.5 (as recommended by the Legal Ethics Committee February 2013) Current ORPC Proposed ORPC Explanation (a) A lawyer shall not make or cause to be made any communication about the lawyer or the lawyer's firm, whether in person, in writing, electronically, by telephone or otherwise, if the communication: (1) contains a material misrepresentation of fact or law, or omits a statement of fact or law necessary to make the communication considered as a whole not materially misleading; (2) is intended or is reasonably likely to create a false or misleading expectation about results the lawyer or the lawyer's firm can achieve; (3) except upon request of a client or potential client, compares the quality of the lawyer's or the lawyer's firm's services with the quality of the services of other lawyers or law firms; (4) states or implies that the lawyer or the lawyer's firm specializes in, concentrates a practice in, limits a practice to, is experienced in, is presently handling or is qualified to handle matters or INFORMATION ABOUT LEGAL SERVICES Rule 7.1 Communications Concerning a Lawyer’s Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. The proposed new rule combines (a) and (a)(1) of the current rule and states the overarching prohibition against communications that are false or misleading either by misrepresentation or omission. The remaining specific prohibitions are eliminated, with the exception of (a)(4), which is now found in Rule 7.4. Eliminating a list of specific prohibitions will require lawyers to evaluate proposed communications on a case-bycase basis, but also focuses the analysis on the harm to be prevented, namely that communications not be false or misleading. The 2009 Advertising Task Force also recommended eliminating the enumerated list on the grounds that it was overbroad and underinclusive since it didn’t include every prohibited type of communications while including some things that weren’t necessarily either false or misleading.
Page 1 and 2: Oregon State Bar Meeting of the Boa
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February 22, 2013 - Oregon State Bar

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