ABA Model Rule 8.4(g) Efforts in Oregon

Status of Action in Oregon

May 2022
Status – The Oregon State Bar is considering whether or not to amend its rule of professional conduct. 

The board of governors (BOG) of the Oregon State Bar (OSB) adopted a motion tasking the OSB Legal Ethics Committee (LEC) with determining whether the BOG should amend Oregon Rules of Professional Conduct Rule 8.4(a)(7) to conform more closely with ABA Model Rule 8.4(g). The LEC has formed a subcommittee to study the current Oregon rule in connection with ABA Model Rule 8.4(g).

Current Rule 8.4 Misconduct
(a) It is professional misconduct for a lawyer to:

     (1) violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so
     through the acts of another;

     (2) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness
     as a lawyer in other respects;

     (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects
     adversely on the lawyer’s fitness to practice law;

     (4) engage in conduct that is prejudicial to the administration of justice; or

     (5) state or imply an ability to influence improperly a government agency or official or to achieve
     results by means that violate these Rules or other law, or

     (6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of
     judicial conduct or other law.

     (7) in the course of representing a client, knowingly intimidate or harass a person because of that
     person’s race, color, national origin, religion, age, sex, gender identity, gender expression, sexual
     orientation, marital status, or disability.

(b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge. “Covert activity” may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity has taken place, is taking place or will take place in the foreseeable future.

(c) Notwithstanding paragraph (a)(7), a lawyer shall not be prohibited from engaging in legitimate advocacy with respect to the bases set forth therein.

Adopted 01/01/05. Amended 12/01/06: Paragraph (a)(5) added. Amended 02/19/15: Paragraphs (a)(7) and (c) added.

Defined Terms (see Rule 1.0): “Believes” “Fraud” “Knowingly” “Reasonable”

Comparison to Oregon Code: This rule is essentially the same as DR 1-102(A). Paragraph (b) retains DR 1-102(D).