Can an Oregon lawyer accept payment from an insurance adjuster to handle a conservatorship for an unrepresented minor and the minor's parents?

Plain-English summary

An insurance adjuster who has reached a settlement with the parents of an injured minor asks the lawyer to handle a conservatorship proceeding to effect the settlement. The adjuster offers to pay the lawyer's fees and says that neither the minor nor the parents are represented by counsel. The question is whether the lawyer may take the engagement.

The opinion concludes yes, qualified. It applies Oregon RPC 1.8(f), which allows a lawyer to accept compensation from someone other than the client only if the client gives informed consent, there is no interference with the lawyer's independent professional judgment or the client-lawyer relationship, and client information is protected under RPC 1.6. It reads this together with RPC 5.4(c), which bars a lawyer from letting a person who recommends, employs, or pays the lawyer direct or regulate the lawyer's professional judgment.

The opinion notes that informed consent under RPC 1.0(g) requires the lawyer to communicate adequate information about the material risks and reasonably available alternatives. It concludes the lawyer must consult with and obtain the informed consent of the minor and the parents, and, once that consent is obtained and the lawyer does not permit the adjuster to direct the services, the lawyer may undertake the representation.

In practice

Under the Oregon rules as they stood at the time of the opinion, RPC 1.8(f) permitted third-party payment of a client's fees only with the client's informed consent and without interference with the lawyer's independent judgment, and RPC 5.4(c) barred the payer from directing the lawyer's professional judgment. The opinion holds that, on these facts, the lawyer may proceed once the minor and parents give informed consent and the adjuster is not permitted to direct or regulate the representation.

Common questions

Q: Can someone other than the client pay a lawyer's fee in Oregon?

A: Yes, with conditions. The opinion concludes RPC 1.8(f) allows it if the client gives informed consent, the payer does not interfere with the lawyer's independent judgment, and client information is protected under RPC 1.6.

Q: Can the insurance adjuster who pays the fee direct how the lawyer handles the conservatorship?

A: No. The opinion concludes RPC 5.4(c) bars a lawyer from letting a person who recommends, employs, or pays the lawyer direct or regulate the lawyer's professional judgment.

Q: Whose informed consent is required here?

A: The opinion concludes the lawyer must obtain the informed consent of both the minor and the minor's parents before proceeding.

Background and rules framework

The opinion interprets Oregon RPC 1.8(f) (compensation from one other than the client), RPC 5.4(c) (independence of professional judgment from a payer), the informed-consent definition in RPC 1.0(g), and the confidentiality duty in RPC 1.6. These track Model Rules 1.8(f) and 5.4.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.8(f) / Model Rule 1.8(f) (compensation from a third party)
• Oregon RPC 5.4(c) / Model Rule 5.4 (independence from a payer)
• Oregon RPC 1.0(g) (definition of informed consent)
• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)

Cases:

• In re Benson, 12 DB Rptr 167 (1998)
• In re Richards, 8 DB Rptr 71 (1994)

See also

• OSB Ethics Op. 2005-11: Former-Client Matter-Specific Conflicts
• OSB Ethics Op. 2005-10: Conflicts From a Lawyer's Outside Business

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-22.pdf