466 P.3d 22
Or.2020Background
- Respondent (James D. Harris), an active member of the Pennsylvania and New York bars, was hired as general counsel by Portland Public Schools (PPS) and began work in Oregon on June 15, 2017 before admission to the Oregon Bar.
- Harris applied for reciprocal admission on September 1, 2017; PPS paid the fee and he disclosed his employment. The Bar initially forwarded, then withdrew, a recommendation for admission when it learned he was serving as general counsel pre-admission.
- The Oregon State Bar charged Harris with violating RPC 5.5(a), RPC 5.5(b)(1) and (2), and ORS 9.160 for unauthorized practice of law and holding himself out as an Oregon lawyer.
- A Disciplinary Board trial panel found Harris had practiced law but that his conduct fell within the RPC 5.5(c) exception (temporary provision of legal services, specifically 5.5(c)(5) for services to an employer), and dismissed the complaint.
- On de novo review the Oregon Supreme Court agreed: RPC 5.5(c) permits an out-of-state lawyer to provide legal services pending admission (including when employed permanently subject to admission), and there was no clear-and-convincing evidence Harris misrepresented Oregon Bar membership.
- The complaint was dismissed; the court emphasized that 5.5(c) does not authorize affirmative misrepresentation of admission status, but found no such misrepresentation here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RPC 5.5(c) permits an out-of-state lawyer employed in Oregon to practice and establish a presence while awaiting reciprocal admission | Bar: 5.5(c) does not apply to lawyers who accept permanent employment and intend to join Oregon Bar; "temporary basis" excludes practice pending admission for a permanent job | Harris: Services provided pending admission are necessarily temporary (employment conditioned on admission) and 5.5(c)(5) applies to employer-provided services | Court: 5.5(c) covers practice pending admission if lawyer is in good standing elsewhere, meets one of (1)-(5) (here 5), and the provision of services occurs while not admitted; employment permanence does not bar the exception |
| Whether Harris violated RPC 5.5(b)(1) by establishing an office/systematic presence in Oregon before admission | Bar: Harris established a continuous presence and therefore violated the prohibition against establishing an office/presence | Harris: The 5.5(c) exception authorizes the activity while awaiting admission | Court: No violation because 5.5(c) authorized Harris’s employer-only legal services pending admission |
| Whether Harris violated RPC 5.5(b)(2) by holding himself out as admitted to practice in Oregon | Bar: Using title "General Counsel," attending meetings, and failing to clarify his non‑admitted status would reasonably lead the public to believe he was admitted | Harris: He did not affirmatively misrepresent admission; he was authorized to practice under 5.5(c) | Court: 5.5(c) does not allow misrepresentation, but Bar proved no affirmative misrepresentation by clear and convincing evidence; charge dismissed |
Key Cases Cited
- In re Paulson, 346 Or. 676 (2009) (discusses relationship between RPC 5.5 and ORS 9.160)
- In re Hostetter, 348 Or. 574 (2010) (describes interpretive approach: read disciplinary rules in context)
- In re Kumley, 335 Or. 639 (2003) (addresses misrepresentation by use of title/occupation when not authorized to practice)