If a lawyer sends past clients periodic reminders about deadlines like patent maintenance fees or lease renewals, are those people current clients for conflict purposes?
Apply this to your situation
This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer maintains a long-term docket and sends periodic reminders to past clients about possible further action in otherwise completed matters, such as reminders to pay patent or trademark maintenance fees at set intervals or to exercise options to renew leases or other contracts. The opinion asks whether the clients receiving those notices are current clients, and answers yes.
The opinion explains that the current-versus-former distinction is crucial for conflicts analysis, comparing Oregon RPC 1.7 (current-client conflicts) with Oregon RPC 1.9 (former-client conflicts), and notes the relationship's existence is fact-specific. It draws on Oregon case law, including In re Robertson (inception, existence, and termination are often implied from all the facts) and In re Weidner, which holds that a lawyer-client relationship exists where the services are the kind lawyers traditionally perform and the putative client intended the relationship to form, with that intent shown by objective facts a reasonable person would rely on, by notice to the lawyer, by the lawyer's shared intent, or by conduct inducing reasonable reliance. It adds, citing In re O'Byrne, that no formal fee agreement is required.
Applying that framework, the opinion concludes that recipients of periodic notices may or may not, depending on the facts, hold a sufficiently reasonable belief that the relationship continues. If the lawyer has clearly stated in writing that no continuing relationship exists, none does. Absent such a clear statement, the clients may reasonably believe a continuing relationship exists, making them current clients.
In practice
This opinion was issued in 2005, after Oregon's 2005 adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, but readers should treat its specifics with care given its age. The opinion holds that current-client status for docket-reminder recipients turns on the client's reasonable belief about whether the relationship continues, and that a clear written statement that the relationship has ended is what forecloses that belief. Per the opinion, the analysis is fact-specific under the Weidner reasonable-expectation test. Verify the current text of Oregon RPC 1.7 and 1.9 before relying on any specific point.
Common questions
Q: Does sending a client periodic deadline reminders keep them as a current client?
A: It can. The opinion concludes that, absent a clear written statement that no continuing relationship exists, recipients of periodic docket reminders may reasonably believe the relationship is ongoing, making them current clients.
Q: Why does it matter whether they are current or former clients?
A: Because different conflict rules apply. The opinion notes the distinction is crucial, comparing current-client conflicts under Oregon RPC 1.7 with former-client conflicts under Oregon RPC 1.9.
Q: How can a lawyer avoid an unintended continuing relationship?
A: By a clear written statement. The opinion states that if the lawyer has clearly stated in writing that no continuing relationship exists, none would exist.
Background and rules framework
The opinion interprets the line between Oregon RPC 1.7 (current-client conflicts) and Oregon RPC 1.9 (former-client conflicts), corresponding to Model Rules 1.7 and 1.9, by applying Oregon's case-law test for when a lawyer-client relationship exists (In re Weidner, In re Robertson, In re O'Byrne).
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts)
- Oregon RPC 1.9 / Model Rule 1.9 (former-client conflicts)
Cases:
- In re Weidner, 310 Or 757, 801 P2d 828 (1990) (test for existence of a lawyer-client relationship)
- In re Robertson, 290 Or 639, 624 P2d 603 (1981)
- In re O'Byrne, 298 Or 535, 694 P2d 955 (1985) (no formal fee agreement required)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-120 (rev 2015); OSB Formal Ethics Op. Nos. 2005-86, 2005-17, 2005-11
See also
- OSB Ethics Op. 2005-11: Former-Client Matter-Specific Conflicts
- OSB Ethics Op. 2005-17: Former Client and Use of Confidential Information
- OSB Ethics Op. 2005-120: Lawyers Switching Firms and Screening
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-146.pdf
Get today's answer for your situation
You just read a 2005 opinion on this question. Ezel checks the current Oregon Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.