Plаintiff brings this suit in his official capacity as Attorney General of Oregon to obtain a declaration of his responsibilities under state law and the disciplinary rules of this court. The only issuе on appeal is whether declaratory relief is proper.
The demand for declaratory relief was precipitated by the following facts. The plaintiff received a request for legal advice from the Director of the Department of Land Conservation and Development concerning a draft opinion in a contеsted case before the Land Conservation and Development Commission (LCDC). Two assistant attorneys general met with the director and the hearings officer without notice tо the litigants and in private. The hearings officer felt that he had been subjected to undue pressure and filed a complaint with defendant, the Oregon State Bar.
The president оf the Bar requested an attorney general opinion on two questions - whether the attorney general must render legal advice on request to state agencies concerning a contested case, and whether the advice may be rendered ex parte and in private. In response, plaintiff issued an opinion concluding that he had the statutory duty to give requested legal advice to any agency or its hearings officers in a contested case proceeding and that such advice could be given ex parte and in privatе if (1) the plaintiff was not a party and did. not represent a party, (2) agency rules did not prohibit such contact and (3) the hearings officer was an employe or agent of the agency without independent status and authority to issue final and binding orders. 39 Op Atty Gen 431 (1978); ORS 180.060, 180.220.
The defendant, through its legal ethics committee, considered whether such ex parte advice was unethical under the disciplinary rules of this court. It issued an opinion, approved by the Board of Governors, which stated that the meeting with the director and hearings officer of LCDC violated DR 7-110(B) and DR 9-101, Oregon State Bar, Code of Professional Responsibility.
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Plaintiff filed an action for declaratory relief in the circuit court requesting a declaration as to his rights and rеsponsibilities under statutory law and the rules of this court. Defendant moved for summary judgment, which the court granted on the following grounds: that the complaint did not allege a justiciable controversy, and that even if it did, the court would exercise its discretion and deny jurisdiction. The Court of Appeals reversed and remanded.
We accepted review to decide whether declaratory relief is proper. The defendant asserts three grounds for reversing the Court of Appeals and affirming the summary judgment: (1) the circuit court lacked subject matter jurisdiction to interpret disciplinary rules; (2) there is no justi-ciable controversy, and (3) even if a justiciable controversy exists, refusing declaratory relief is a discrеtionary act which should not be reversed absent an abuse of discretion.
This Uniform Declaratory Judgment Act, ORS 28.010 et seq., confers on Oregon courts of record the “power tо declare rights, status, and other legal relations, whether or not further relief is or could be claimed. * * * The declaration...shall have the force and effect of a final judgment or decree.” ORS 28.010. In order for a court to entertain an action for declaratory relief, the complaint must present a justiciable controversy. Justiciability is a vague standard but entails several definite considerations. A controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between parties having adverse legal interests.
Cummings Constr. v. School Distr. No. 9,
To issue declaratory relief, the court must also have jurisdiction over the subject matter of the controversy. The Uniform Declaratory Judgment Act is not an
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independent grant of jurisdiction.
Lokey v. Texas Methodist Foundation,
1. Plaintiff’s statutory duties
Plaintiff contends that he has the right pursuant to ORS 180.220, to give advice to agencies upon request, with specific qualifications. Defendant, on the other hand, takes the position, that plaintiff may not engage in such conduct because it violates the disciplinary rules. Although the pleadings indicate a substantial controversy, the defendant asserts that it is not justiciable beсause it involves only advisory ethics opinions, does not involve present facts and is moot because of a recent LCDC rule prohibiting the conduct.
We find, however, that thе controversy is justicia-ble. While the controversy arises from advisory opinions, the substance of the controversy concerns the interpretation of a statute. The court is requested to consider a specific set of facts - whether plaintiff may give advice upon request to agencies in contested cases where plaintiffs оffice is not involved in the case, agency rules do not prohibit the conduct and the recipient does not have authority to issue binding orders. The controversy involves prеsent facts, the plaintiffs existing statutory duty. The fact that LCDC promulgated a rule prohibiting such conduct does not, as defendant asserts, render the controversy moot. The controversy does not concern the specific conduct of having given advice to the director of LCDC but concerns the plaintiffs continuing state-wide official conduct under the statutes.
Defendant contends that even if the controversy is justiciable, the court did not abuse its discretion in refusing to grant declaratory relief. The trial court stated that were the controversy justiciable, it would exercise its discretion
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to deny review because of the specialized competence to the Bar to investigate and monitor the conduct of attorneys and the exclusive disciplinary authority of this court. While the courts do have some discretion in granting declaratory relief, Cf. ORS 28.060, where a justiciable controversy exists and the trial court has jurisdiction over the subject matter of the controversy, the • court should afford relief absent valid countervailing reasons.
Cf. Brooks v. Dierkes,
Having decided that the circuit court erred in refusing to resolve the controversy concerning plaintiffs statutory responsibilities, we proceed to consider whether the court also should determine plaintiffs ethical responsibilities.
2. Disciplinary Rules
The second question concerns the trial court’s authority to determine whether plаintiffs conduct is unethical under this court’s disciplinary rules. This controversy is not justiciable under ORS ch. 28 because an interpretation of a disciplinary rule by the circuit court cannot be a binding determination. A circuit court opinion would be advisory only.
The disciplinary rules are standards adopted by this court to govern the supervision and discipline of attorneys. The professional discipline of attorneys is within the exclusive jurisdiction of this court. The Oregon State Bar is charged with enforcing the rules, ORS 9.490, to the extent of investigating possible occurrence of professional misconduct and making recommendations to this court. The recommendations and the ethics opinions which they publish are advisory and are not binding on this court. Were an interpretation of the rules by the circuit court considered to be binding, the decision would infringe on this court’s exclusive jurisdiction to disciplinе attorneys and establish standards of ethical conduct because the circuit court would *452 be establishing patterns of conduct to which attorneys should adhere. 1
Affirmed in part and reversed in part and remanded 2 for a decision as to plaintiffs statutory duties.
Notes
Having deсided that the controversy concerning plaintiffs ethical respon-sibilies under the disciplinary rules is not justiciable under ORS ch. 28, we need not decide whether the controversy is within the trial court’s subject matter jurisdiction.
On remand we call the parties’ attention to Oregon Rules of Civil Procedure, Rule 34F, as to the proper party plaintiff.