Can a lawyer who is also a state legislator take a fee from a client to push legislation that benefits the client?

Plain-English summary

A lawyer who is also a member of the state legislature is asked by a client to seek legislation that would benefit the client, and the client offers to pay the lawyer a fee for that work. The opinion addresses whether the lawyer may ethically perform the requested work for the fee offered.

The opinion concludes no. It reasons that the proposed conduct would constitute bribe-giving (ORS 162.015) and bribe-receiving (ORS 162.025), both felonies, and that under Oregon RPC 1.2(c) and RPC 8.4(a)(1)-(2) a lawyer may not knowingly commit or assist in such illegal conduct. The opinion also cites RPC 8.4(a)(5), barring a lawyer from stating or implying an ability to improperly influence a government official.

The opinion further applies Oregon RPC 1.11(d)(2), which bars a lawyer serving as a public officer from using the position to obtain special advantage in legislative matters for a client or from accepting anything of value offered to influence the lawyer's action as a public official. The opinion notes that while ORS 244.120(1)(a) lets a legislator disclose certain conflicts and still participate, nothing in ORS chapter 244 or RPC 1.11 permits bribe-giving or bribe-taking.

In practice

The opinion holds that, under the Oregon rules as they stood at the time, a lawyer-legislator may not be paid by a private client to advance legislation for that client. The opinion treats the fee-for-legislation arrangement as criminal bribery that RPC 1.2(c) and 8.4 forbid a lawyer from committing or assisting, separate from the public-officer restrictions in RPC 1.11(d)(2).

Common questions

Q: Can a lawyer-legislator be paid to lobby for a client's bill?

A: No. The opinion concludes accepting a client fee to seek beneficial legislation is bribe-giving and bribe-receiving under ORS 162.015 and 162.025, conduct a lawyer may not commit or assist under RPC 1.2(c) and 8.4.

Q: Does Oregon RPC 1.11 add a separate bar?

A: Yes. The opinion concludes RPC 1.11(d)(2) independently bars a lawyer serving as a public officer from using the position for a client's special advantage in legislative matters or accepting value offered to influence the lawyer's official action.

Q: Does a legislator's conflict-disclosure statute make it permissible?

A: No. The opinion concludes that although ORS 244.120(1)(a) lets a legislator disclose a conflict and still participate, nothing in ORS chapter 244 or RPC 1.11 permits bribery.

Background and rules framework

The opinion interprets Oregon RPC 1.2(c) (not assisting illegal conduct), RPC 8.4(a) (misconduct, including criminal acts and implying improper influence), and RPC 1.11(d)(2) (conflicts for a lawyer serving as a public officer). These track Model Rules 1.2, 8.4, and 1.11. The criminal bribery statutes are ORS 162.015 and 162.025; the public-official conflict statutes are in ORS chapter 244.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.2(c) / Model Rule 1.2 (assisting illegal conduct)
• Oregon RPC 8.4(a)(1)-(2), (5) / Model Rule 8.4 (misconduct)
• Oregon RPC 1.11(d)(2) / Model Rule 1.11 (lawyer as public officer)

Statutes:

• ORS 162.015 (bribe giving); ORS 162.025 (bribe receiving)
• ORS chapter 244 (government ethics; ORS 244.120, 244.040)

Cases:

• In re McMahon, 266 Or 376, 513 P2d 796 (1973)

See also

• ABA Formal Op. 509: Confidential Government Information and Disqualification
• ABA Formal Op. 97-409: Successive Government and Private Employment

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-7.pdf