If a current client files a bar complaint against the lawyer but does not fire the lawyer, must the lawyer withdraw from the case?

Plain-English summary

A lawyer represents a client in a matter set for trial. One week before trial, the client files a bar complaint but does not discharge the lawyer, alleging that the lawyer failed to interview key witnesses and failed to return calls about trial strategy. The lawyer doubts the identified witnesses can give admissible testimony but is willing to interview them, and believes the lawyer has made reasonable efforts to keep the client informed. The opinion asks whether the lawyer must seek to withdraw once the complaint is filed, and answers no, qualified.

The opinion applies Oregon RPC 1.16, which requires withdrawal when the representation would violate the rules or when the lawyer is discharged. Because the client has not discharged the lawyer, Oregon RPC 1.16(a)(3) does not require withdrawal. The lawyer must instead consider whether the complaint creates a conflict under Oregon RPC 1.7(a)(2), where a significant risk exists that the representation will be materially limited by the lawyer's personal interest, here the desire to avoid discipline or possible resentment toward the client. If such a conflict exists, the lawyer may continue only with the client's informed consent confirmed in writing and only if the lawyer reasonably believes competent and diligent representation can still be provided; if consent is unavailable or refused, Oregon RPC 1.16(a)(1) requires withdrawal, subject to tribunal permission under Oregon RPC 1.16(c).

The opinion concludes a bar complaint is not a per se conflict, reasoning by analogy to a potential malpractice claim, which the Oregon Supreme Court addressed in In re Knappenberger and In re Obert. Those cases rejected a per se approach: it must be shown that the error and the resulting potential liability will or reasonably may affect the lawyer's professional judgment, depending on the facts, and the stronger the potential claim, the greater the risk to the lawyer's judgment. Applying that to the facts, the opinion concludes the witness-interview allegation poses minimal risk, because the lawyer is better positioned to judge admissibility and is willing to interview the witnesses without delaying trial, so there is little apparent motive to act against the client's interest. The communication allegation is more subjective and carries somewhat greater potential liability, but is still unlikely to trigger Oregon RPC 1.7; a cautious lawyer may nonetheless obtain the client's informed consent confirmed in writing.

In practice

This opinion (revised 2025) interprets the current Oregon Rules of Professional Conduct. The opinion holds that a client's bar complaint, without discharge, neither requires withdrawal nor creates an automatic conflict; the question is whether it produces a significant risk that the lawyer's personal interest, like avoiding discipline, will materially limit the representation under Oregon RPC 1.7(a)(2). Per the opinion, the analysis tracks the malpractice-claim cases: the strength of the potential claim and the lawyer's resulting incentive determine whether a conflict exists, and conduct aimed at concealing an error is likely to be a conflict. The opinion holds that if a material-limitation conflict exists, the lawyer needs the client's written informed consent and a reasonable belief in continued competent representation, or must withdraw subject to Oregon RPC 1.16(c).

Common questions

Q: Does a lawyer have to withdraw when a current client files a bar complaint?

A: No, not automatically. The opinion concludes that because filing a complaint does not discharge the lawyer, Oregon RPC 1.16 does not require withdrawal, and a bar complaint is not a per se conflict.

Q: When does a client's bar complaint create a conflict?

A: The opinion concludes a conflict arises only if the complaint creates a significant risk that a personal interest, such as the lawyer's desire to avoid discipline, will materially limit the representation under Oregon RPC 1.7(a)(2).

Q: If there is such a conflict, can the lawyer still continue?

A: Only with consent. The opinion concludes the lawyer may continue only if the lawyer reasonably believes competent and diligent representation is possible and the client gives informed consent confirmed in writing; otherwise the lawyer must withdraw.

Q: How is a bar complaint like a potential malpractice claim?

A: The opinion concludes both make the lawyer's and client's interests adverse, and it applies the malpractice cases' rule that there is no per se conflict; the stronger the potential claim, the greater the risk to the lawyer's judgment.

Background and rules framework

The opinion interprets Oregon RPC 1.16 (declining and withdrawing from representation), Oregon RPC 1.7(a)(2) and (b) (personal-interest conflicts and informed consent), and Oregon RPC 1.4 (communication), corresponding to Model Rules 1.16, 1.7, and 1.4. It applies the Oregon Supreme Court's malpractice-conflict cases, which reject a per se conflict rule.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.16 / Model Rule 1.16 (declining or terminating representation)
• Oregon RPC 1.7(a)(2), (b) / Model Rule 1.7 (personal-interest conflicts; informed consent)
• Oregon RPC 1.4 / Model Rule 1.4 (communication)

Cases:

• In re Knappenberger, 337 Or 15, 90 P3d 614 (2004), no per se conflict from a potential malpractice claim
• In re Obert, 336 Or 640, 89 P3d 1173 (2004), reasonable likelihood the lawyer's judgment is affected
• In re Schenck, 345 Or 350, 194 P3d 804 (2008), disinterested-lawyer comparison

See also

• OSB Ethics Op. 2005-1: Withdrawal From Litigation for Unpaid Fees
• OSB Ethics Op. 2005-33: Withdrawal When the Client Cannot Be Found

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2009-182.pdf