Ezel / Ethics Opinions / OSB
OSB August 2005

Can an Oregon lawyer help a client buy back the client's own bad checks to reduce criminal exposure, if the steps are lawful?

Short answer: Yes, qualified. The opinion concludes that because the actions the client asks for are assumed lawful, the lawyer has a duty under Oregon RPC 1.2 to act in accordance with the client's directions; the result would change if the conduct were illegal or fraudulent.

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.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer is asked to represent a client under investigation for negotiating bad checks. The client wants the lawyer to use the client's money to buy up as many of the client's bad checks as possible to limit exposure in the criminal proceedings. The opinion assumes for its analysis that the lawyer's actions will be lawful, and asks whether the lawyer may do so. The conclusion is yes, qualified.

The opinion applies Oregon RPC 1.2: a lawyer must abide by a client's decisions concerning the objectives of representation, may take impliedly authorized action to carry out the representation, may limit the scope of representation with informed consent, but may not counsel or assist a client in conduct the lawyer knows is illegal or fraudulent (though the lawyer may discuss legal consequences and help a client make a good-faith effort to determine the law's application). It also sets out the misconduct standards of RPC 8.4(a).

Because the actions the client asks the lawyer to perform are assumed lawful, the opinion concludes the lawyer has a duty to act in accordance with the client's directions. The opinion's qualification is the lawfulness assumption itself: it contrasts the result with cases disciplining lawyers who advised or assisted clients in defrauding creditors.

In practice

The opinion holds that the permissibility of helping a client buy back the client's own bad checks turns on whether the conduct is lawful. The opinion treats lawful, client-directed steps as something the lawyer must carry out under RPC 1.2(a), while RPC 1.2(c) and 8.4 would bar the lawyer from assisting conduct the lawyer knows to be illegal or fraudulent.

Common questions

Q: Can a lawyer help a client repurchase the client's own bad checks?

A: Yes, if lawful. The opinion concludes that because the assumed-lawful actions are the client's decision, the lawyer has a duty under RPC 1.2(a) to act on the client's directions.

Q: What would make this impermissible?

A: Illegality or fraud. The opinion concludes RPC 1.2(c) bars a lawyer from counseling or assisting conduct the lawyer knows is illegal or fraudulent, and RPC 8.4 makes such assistance misconduct.

Background and rules framework

The opinion interprets Oregon RPC 1.2 (scope of representation and allocation of authority), including the duty to abide by client decisions in 1.2(a) and the bar on assisting illegal or fraudulent conduct in 1.2(c), with the misconduct standards of RPC 8.4(a). These track Model Rules 1.2 and 8.4.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.2 / Model Rule 1.2 (scope of representation; client decisions)
  • Oregon RPC 8.4(a) / Model Rule 8.4 (misconduct)

Cases:

  • In re Hockett, 303 Or 150, 734 P2d 877 (1987)
  • In re Claussen, 331 Or 252, 14 P3d 586 (2000)

See also

Source

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