Can an Oregon lawyer represent both the issuer and the underwriter on the same municipal bond issue?
Apply this to your situation
This page answers the general question as of 2005. Ask about yours and see what the current Oregon Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer has an extensive municipal bond practice. The opinion asks whether, if the lawyer is counsel for an issuer on a particular bond issue, the lawyer may also be counsel for the underwriter on that same bond issue.
The opinion concludes no. Simultaneous representation of the issuer and underwriter in the same transaction is a current-client conflict under Oregon RPC 1.7, because the lawyer would be obligated to contend for something on behalf of one client that the lawyer has a duty to oppose for the other. The opinion notes this is the kind of conflict RPC 1.7(b)(3) does not allow even with consent.
The opinion adds two clarifications. It does not address when a lawyer may be deemed to represent a client the lawyer has not expressly undertaken to represent. And it explains that, although the lawyer cannot represent both the issuer and the underwriter at once, the lawyer may, while representing only one of them, perform work that proves to benefit both.
In practice
The opinion holds that the issuer and underwriter occupy opposing positions in the same bond transaction, so representing both is barred under RPC 1.7 and cannot be cured by consent. Per the opinion, a lawyer may still represent one of the parties even though that work incidentally benefits the other.
Common questions
Q: Can one lawyer serve as both bond counsel for the issuer and counsel for the underwriter?
A: No. The opinion concludes that simultaneous representation in the same bond issue is a current-client conflict under RPC 1.7 that consent cannot cure.
Q: Why can't the parties just consent to the joint representation?
A: Because the lawyer would have to contend for something on behalf of one client that the lawyer must oppose for the other, which RPC 1.7(b)(3) does not permit even with consent.
Q: Can the lawyer represent just one side?
A: Yes. The opinion notes that representing only one client, even if the work benefits both, is not prohibited.
Background and rules framework
The opinion interprets Oregon RPC 1.7 (current-client conflicts), including the RPC 1.7(b)(3) bar on representations that require contending for and against the same point. RPC 1.7 tracks Model Rule 1.7.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts)
Other opinions cited:
- OSB Formal Op. 2005-28 and 2005-27: non-consentable conflicts and identifying the client
See also
- OSB Ethics Op. 2005-28: Representing Both Sides in an Adoption
- OSB Ethics Op. 2005-27: Trade Association vs. Members Conflict
- OSB Ethics Op. 2005-30: Simultaneous Representation of Insurer and Insured
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-37.pdf
What do the rules say today, for your facts?
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