In rе Complaint as to the Conduct of JAMES D. HARRIS, OSB No. 182040, Respondent.
(OSB 1847) (SC S066593)
Supreme Court of Oregon
May 21, 2020
466 P3d 22 | 366 Or 475
Argued and submitted on March 9, complaint dismissed May 21, 2020
The Oregon State Bar brought a disciplinary action against the respondent lawyer for violating the rules prohibiting the unauthorized practice of law, after he accepted a job in Oregon and began work as general counsel for Portland Public Schools pending his admission to the Oregon Bar. A trial panel of the Disciplinary Board found that the respondent had not committed the charged violations, because, it concluded that an exception to those rules allowed respondent to practice law on a temporary basis while awaiting reciprocal admission. Held: On de novo review, the court concluded that respondent did not commit the charged violations, because his practice of law and his establishment of a legal presence in Oregon before his admission to the Bar were permitted by
The complaint is dismissed.
En Banc
On review of the decision of a trial panel of the Disciplinary Board.
David J. Elkanich, Holland & Knight LLP, Portland, argued the cause and filed the brief on behalf of respondent. Also on the brief was Calon N. Russell.
Theodore W. Reuter, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the briefs on behalf of the Oregon State Bar.
PER CURIAM
The complaint is dismissed.
In this lawyer discipline case, respondent moved to Oregon from Pennsylvania and began work as general counsel for Portland Public Schools (PPS) before he became a member of the Oregon Bar. The Bar charged respondent with violating
We review decisions of the trial panel de novo.
In early 2017, PPS, through a recruiting firm, began a nationwide search for a new general counsel. The recruiting firm called respondent to PPS‘s attention, and PPS ultimately interviewed, and then hired, respondent. Respondent was a member in good standing of the state Bars of Pennsylvania and New York when he was hired, but he was not admitted to the Bar in Oregon. Respondent was aware that admission to the Oregon Bar was a condition of the job. Respondent consulted Oregon‘s Rules of Professional Conduct, particularly
Respondent signed an employment agreement with PPS in May 2017 and began work on June 15. He then began gathering the information required for an application for reciprocal admission. He eventually submitted his application to the Bar on September 1, 2017. In the application, respondent disclosed that he had been working for PPS. He listed PPS as an employer reference, and PPS paid the application fee. The Bar did not flag any impropriety in respondent‘s bar admission status at that time.
Approximately two months later, a bar complaint was filed against respondent in a matter unrelated to any issue before us here. The Bar ultimately concluded that the complaint was unfounded. However, in the сourse of investigating that complaint, an assistant general counsel for the Bar learned that respondent had been serving as general
Later that month, for reasons unrelated to his Bar admission status, respondent resigned from his position with PPS. The same day, the Bar forwarded respondent‘s application for reciprocal admission to the Oregon Supreme Court with a recommendation that he be admitted. The Bar withdrew that recommendation the next day.2
The Bar then charged respondent with violating
“(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.”
Before the trial pаnel, the Bar argued that, from the beginning of respondent‘s employment with PPS until he resigned in November 2017, respondent provided legal advice and expertise to the school district. Among other things, he regularly participated in internal staff meetings and reviewed legal documents for PPS, he oversaw the work of outside legal counsel, and he managed the litigation of cases in federal and state court. Moreover, the Bar asserted, respondent held himself out as being admitted to practice law in this jurisdiction by using the title “General Counsel” in correspondence and online without clarifying that he was not admitted to the practice of law in Oregon. Thus, according to the Bar, respondent practiced law and held himself out as a member of the Bar in violation of
The Bar further contended that respondent‘s practice of law was not permitted by
“(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.”
The Bar argued to the trial panel that
The trial panel agreed with the Bar that respondent had engaged in the practice of law during his employment with PPS. However, it agreed with respondent that his practice of law in Oregon before his admission to the Oregon Bar was permissible under the exception to the rule against the unauthorized practice of law set out in
The trial panel observed that respondent had met the first set оf preconditions for the exception: He was admitted in other jurisdictions, and he had not been disbarred or suspended from practice in any jurisdiction. Therefore, the trial panel stated,
In this case, the trial panel concluded that
That left the final issue for the trial panel: whether respondent‘s work for PPS was permissible under
“There is no single test to determine whether a lawyer‘s services are provided on a ‘temporary basis’ in this jurisdiction, and may therefore be permissible under division (c). Services may be ‘temporary’ even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.”
Comment [6] to ABA Model Rule 5.5.
The trial panel found that respondent‘s practice pending his reciprocal admission to the Oregon Bar was temporary as that word is commonly understood, because Bar membership was a condition of respondent‘s employment with PPS. That is, there was no dispute that respondent would have been fired if he had failed to gain admission to the Oregon Bar. Therefore, the trial рanel stated, respondent‘s employment was temporary until he satisfied that requirement. In so concluding, the trial panel rejected the Bar‘s arguments that the rule does not allow out-of-state lawyers to practice while awaiting admission in Oregon and that, in any case, respondent‘s practice pending admission cannot be considered temporary, because he was hired as a permanent employee. In the trial panel‘s view, the common understanding of the word “temporary” encompasses practice pending admission, and the long-term, “permanent” nature of respondent‘s employment with PPS was to commence only after he had been admitted to the Bar; before that, the trial panel stated, his employment was “unambiguously ‘temporary.‘”
Finally, the trial panel found that respondent did not violate
“qualified by the rule‘s caveat that it applies ‘except as authorized by these Rules or other law. . . .’ Thus, respondent was ‘authorized by these Rules’ to do what he did[,] and a violation of these subsections cannot be established.”
ANALYSIS
The Bar seeks review of the trial panel‘s determination that respondent did not commit any of the charged violations. In challenging the trial panel‘s conclusions, the Bar makes two principal arguments. First, it reprises its argument that
A. The Alleged Violations of RPC 5.5(a) and RPC 5.5(b)(1)
We begin by clarifying the perhaps obvious point that, even though respondent was not a member of the Oregon Bar at the time of his alleged misconduct, he nonetheless was subject to Oregon‘s disciplinary rules.
To repeat, as relevant here,
The applicability of that exception boils down to a single disputed legal issue. Like the trial panel, we find that respondent satisfied the requirements in
When interpreting a disciplinary rule, the court looks to “the wording of the rule, read in context.” In re Hostetter, 348 Or 574, 583, 238 P3d 13 (2010) (citation omitted). Turning first to the text, we note,
Rather, as we have stated, the Bar contends that only lawyers who intend to work in Oregon for a limited time can avail themselves of the exception; a lawyer who accepts a permanent job cannot be said to intend to provide legal services on a temporary basis. Respondent, on the other hand, argues that his provision of legal service without being admitted to the Oregon Bar would necessarily be temporary; if he were not admitted, he would be fired. Thus, as the parties’ arguments reflect, the applicability of
Rule 5.5 covers both “Unauthorized Practice of Law” and “Multijurisdictional Practice.” The purpose of
The rest of
The other three circumstances contain no durational limitation and are not tied to a specific proceeding. Paragraph (c)(1) applies when the legal services are undertaken in association with and with the active participation of a lawyer who is admitted in Oregon. Paragraph (c)(4) applies when the legal services are not related to a pending litigation or arbitration but are reasonably related to the lawyer‘s out-of-state practice. And
We reject the Bar‘s contrary view that “temporary basis” means providing legal services in Oregon only when the out-of-state lawyer has not accepted employment in Oregon that would require admission to the Oregon Bar. First, with respect to four of the five circumstances in which a lawyer may
The Bar also posits a practical problem with reading
For the foregoing reasons, we hold that an out-of-state lawyer in good standing in another jurisdiction provides legal services “on a temporary basis,” as that phrase is used in
B. The Alleged Violations of RPC 5.5(b)(2)
The Bar also contends that the trial panel erred in concluding that respondent did not violate
“(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
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“(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.”
The trial panel made no findings concerning whether respondent‘s conduct violated
The Bar repeats its contention that respondent violated
We agree that
The Bar does not offer any evidence that respondent affirmatively misrepresented himself to the public as a member of the Oregon Bar. Rather, in support of its argument that respondent violated
In Kumley, the respondent was an inactive member of the Oregon Bar. When he became inactive, he signed a form that included the following statement: “Inactive members [of the Bar] may not practice law or hold themselves out as attorneys in the State of Oregon.” Kumley, 335 Or at 641 (emphasis omitted). The respondent also was not admitted to practice in any other jurisdiction. The respondent took steps toward becoming a candidate for a seat in the state legislature. On forms that he submitted to various state agencies in connection with that candidacy, he listed his “occupation” as “attorney.” Id. at 642-43. That statement was ultimately included in the voters’ pamphlet. Id. at 642. After the respondent lost the election, the Bar received an ethics complaint against the respondent based on his representations of himself as an attorney on those forms and in the voters’ pamphlet. Id. at 643. Based on those representations, the Bar ultimately charged the respondent, among other things, with violating
In assessing whether the respondent committed a misrepresentation in violation of
The court‘s decision in Kumley does not assist the Bar. As we have just explained, the court stated in Kumley that referring to oneself as an “attorney” would not be a misrepresentation even for an inactive lawyer, because the word “attorney” merely conveys that a lawyer is a member of a bar. In this case, at all relevant times, respondent was an active member of a bar, and, as we have already held, he was authorized to practice law in Oregon under
We also conclude that
“A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.”
But
Accordingly, on de novo review, we conclude that the Bar has not proved by clear and convincing evidence that respondent violated
The complaint is dismissed.
Notes
“(1) Except as provided in this section, a person may not practice law in this state, or represent that the person is qualified to practice law in this state, unless the person is an active member of the Oregon State Bar.”