Ethics News: Dual Representation in Estate Planning and Disqualification of Judges

Yesterday we received the news that two new ethics opinions were adopted by the BOG at its February 23 meeting.

The proposed opinions are listed on the agenda as:

  • Proposed OSB Formal Op No 2018-XX Representing Husband and Wife in Preparation of Estate Plan Involving Waiver of Elective Share; and
  • Proposed OSB Formal Op No 2018-XX Disqualification of Judges

Here are some key excerpts:

Husband and Wife Representation in Estate Plan Involving
Waiver of Elective Share

No conflict exists where lawyer provides general information to clients

Providing general information about the elective share does not create a significant risk that Lawyer’s responsibility to one client will be materially impaired by his responsibilities to the other.

If waiver benefits one client more than the other, dual representation is perilous at best and most likely a conflict

Were Lawyer to represent both spouses with respect to an agreement to waive the elective share, Lawyer would be literally representing both sides of an agreement likely to benefit one client more than the other. Such conflict may be waivable in limited circumstances, but it is perilous…. [The] more important the elective share appears to be to either spouse, the less likely the conflict is to be waivable, and vice versa.

Confidentiality and attorney-client privilege weight heavily in determining whether dual representation is available

Comment 30 to ABA Model Rule 1.7 notes that “[a] particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality.” Attorney-client privilege is typically waived among clients who are jointly represented. OEC 503(4)(e). Such lack of confidentiality may make it difficult for Lawyer to explore whether one spouse has concerns about waiving the elective share, since that spouse may be reluctant to fully share those concerns with the other spouse. That, in turn, impairs Lawyer’s ability to fully advise each spouse.

Later invalidity of the dual representation may affect the estate plan

In addition to potentially impairing the lawyer’s ability to represent the spouse who might object to waiving the elective share, the conflict also creates risk for the other spouse. A spouse may make certain estate planning decisions based on what he or she believes to be other spouse’s waiver of the elective share. A later finding that the waiver was invalid, due to the attorney’s conflictive representation, would likely frustrate the decedent’s estate plan that counted on that waiver of elective share.

My two cents

The dual representation scenario laid out by this opinion is one of those situations where it may be possible to go forward with informed consent confirmed in writing, but – and its an awfully big but – it isn’t smart from a malpractice avoidance point-of-view. This is a thoughtful opinion that takes the time to spell out the many ways that husband-wife representation can go awry. What starts out friendly takes a turn. And as the opinion states, if consent to the dual representation is later invalidated, then what? That elephant in the room you’re sensing is a legal malpractice claim.

Disqualification of Judges

Whether a lawyer has proper grounds for affidaviting a judge is largely a matter of subjective inquiry, so long as the lawyer’s statements are true

Oregon RPCs 3.3(a)(1), 8.2(a), and 8.4(a)(3)-(4) prohibit lawyers from making any false statements in an affidavit for change of judge.The critical issue, therefore, is whether Lawyer can truthfully state in an affidavit under ORS 14.260 that: (1) Lawyer believes Defendant or Lawyer cannot receive a fair and impartial trial or hearing before Judge X; and (2) Lawyer is filing the disqualification motion in “good faith and not for the purpose of delay.” As far as the Oregon RPCs are concerned, these are subjective inquiries.

Lawyer can only consider impact of a motion to disqualify on lawyer’s own credibility and reputation to the extent it may impact lawyer’s representation of the client

Lawyer must evaluate whether to file an affidavit for change of judge on a case-by-case basis, without regard to lawyer’s personal interests or the interests of others. Lawyer may consider only the impact that seeking disqualification of Judge X could have on Defendant’s case. Lawyer may not consider the effect, if any, that seeking Judge X’s disqualification could have on Lawyer’s own practice, or on Lawyer’s other current or future clients or cases.This is not to say that Lawyer may never consider the potential impact a disqualification motion would have on Lawyer’s own credibility, reputation, or relationship with Judge X or other judges in ABC County. Lawyer may ethically consider such factors to the extent Lawyer believes they could impact Lawyer’s representation of Defendant.

Lawyers must reasonably consult with clients regarding motions to disqualify

Lawyer has a duty under Oregon RPC 1.2 and 1.4 to reasonably consult with Defendant about that decision. In doing so, Lawyer must disclose sufficient information for Defendant to intelligently participate in a discussion about whether to file an affidavit for change of judge.In some situations, however, a lawyer may need to decide about filing an affidavit for change of judge without any reasonable opportunity to consult with the client beforehand—such as when the lawyer faces an impending deadline or when applicable rules or substantive law requires the lawyer to either file the affidavit immediately or risk waiver.

Lawyers are ethically permitted to make the final decision about seeking disqualification

[The] lawyer is ethically permitted to make the final decision as to whether to seek disqualification, even over his or her client’s objection, provided the lawyer has adequately consulted with the client, as discussed above.

As yet, the opinions have not been formally published on the OSB website.

All Rights Reserved 2018 Beverly Michaelis

Focus on Security – More from the 2018 ABA TECHSHOW

We all know that securing our law firms and protecting client information is our ethical duty. Thus, the continuing focus on security at this year’s ABA TECHSHOW.

Among the topics:

Of course, there were the usual reminders: don’t use unsecured WiFi, don’t click without thinking, watch out for keyloggers when using public computers, and use strong (and unique) pass phrases for all accounts.

Even so, reminders don’t hurt.  And we need to stay on top of trends like how to secure your phone when traveling or Internet-connected printers, TVs, baby monitors, or appliances that may be spying on us.

So get a cup of coffee or tea, and take five with me.  Check out these “best of” summaries of what the experts at TECHSHOW shared:

For more summaries of 2018 ABA TECHSHOW tips, advice, apps, websites, and other useful resources for lawyers, see my main Wakelet page.

All Rights Reserved 2018 Beverly Michaelis

The Best of 60 in 60 from the 2018 ABA TECHSHOW

It’s hard to categorize the annual “60 in 60” tips session at ABA TECHSHOW because it could be anything – useful websites, new apps, career resources, gadgets, editing and proofreading tools for lawyers, or anything else the panelists find that we can’t live without.  Below is a sample of what was covered this year.  For the complete list, view my story on Wakelet.

The short list from 60 in 60

  • TimeFlip – a battery-powered cardboard polygon that uses an app on your smartphone to track time spent on meetings, phone calls, email, and other tasks.
  • Dryver – the mobile app where you can hire a driver starting at $15.95/hour to drive you around in your own car.
  • – the free Chrome extension that uses your LinkedIn profile to create a resume. Here’s mine. Choose from four themes, nine accent colors, and five different fonts at no charge. Unlock more options for $10.  My tip: also consider Strikingly, which allows you to create a website using your LinkedIn profile.
  • The Noris digital pencil from Staedtler – an electromagnetic input pencil that feels like your old #2, looks like your old #2, and works with Samsung smartphones.
  • Sideways Dictionary – a site that demystifies tech babble like “sandboxing” or “honeypot,” which have nothing to do with kids playing or bears eating honey.
  • PerfectIt – an intelligent editor and proofreader with a special style sheet specifically designed for lawyers. $99 a pop, integrates with Microsoft Word. Check out the free trial.
  • Flow-e – an email and task management platform combined to transform your inbox into a highly visual task board (Kanban style) or Sanebox, which automatically filters unimportant email out of your inbox (works with Gmail, Office 365, Apple iCloud, etc.).

There’s so much more … like how to create your own digital medical exhibits

Hopefully I’ve tempted you. Check out the complete list from 60 in 60!  Where else will you learn how to validate websites, determine if your passwords have been compromised, use private browsing, convert your blog into a podcast, check Google trends, or mute calls using your Apple watch?

All Rights Reserved 2018 Beverly Michaelis


For more summaries of 2018 ABA TECHSHOW tips, advice, and resources for lawyers, see my main Wakelet page.

CLE Series: Best Practices for Effective and Ethical Office Systems

Your office systems are the backbone of everything you do. Join me for CLEs on Wednesday, March 28, 2018 and April 11, 2018 and learn how to implement best practices for client intake, engagement, workflow, docketing, conflicts, disengagement, and file retention.

Register Now
$25 – Visit the Upcoming CLE page or choose one of the registration links below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

Best Practices for Client Intake, Engagement, and Workflow

Best Practices for Docketing, Conflicts, Disengagement, and File Retention

Both programs are live, online webinars.

Who Should Attend?
Lawyers, office administrators, or staff – anyone interested in improving office systems.

Program Details
Best Practices for Client Intake, Engagement, and Workflow
March 28, 2018 CLE – 10:00 a.m. to 11:00 a.m. Pacific


  • Recognizing objectives and ethical traps
  • Implementing the 7 key elements of effective intake forms
  • Building in accountability to prevent mistakes
  • Automating intake with ease


  • Documenting representation: why bother?
  • Appreciating the ethical implications of engagement vs. nonengagement
  • Finding alternatives when a nonengagement letter can’t be sent
  • Modernizing the engagement process using forms, brochures, automation, and eSignatures


  • Identifying barriers to improving productivity: what’s stopping us?
  • Exploring the connection between bar complaints and poor workflow management
  • Setting objectives using automation, integration, and delegation
  • Using technology and staffing to improve workflow

Best Practices for Docketing, Conflicts, Disengagement, and File Retention
April 11, 2018 CLE – 10:00 a.m. to 11:00 a.m. Pacific


  • Learning the attributes of effective docketing systems
  • Appreciating the duty of due diligence
  • Docketing tips for eCourt practitioners: knowing where to go, forwarding notices, calculating deadlines, understanding the Register of Actions, enlisting proper email management


  • Recognizing ethical traps
  • Establishing system objectives: who to screen and when to screen
  • Comparing software applications
  • Streamlining conflict checking using forms, checklists, procedures, and letters
  • Recording conflict results

Disengagement and file retention

  • Meeting your ethical obligations under Oregon RPC 1.16
  • Simplifying disengagement with forms
  • Protecting clients and limiting liability exposure
  • Creating policies, procedures, and checklists
  • Accessing resources


Are group discounts available?
Discounts are available to firms who register 5 or more attendees. Contact me for a discount code before you register

Do the Programs Include Written Materials? 
Yes. Written materials are distributed electronically to attendees.

Are questions welcome?
Absolutely. Questions may be submitted any time during the live event or afterward via email. Attendees are also encouraged to participate in live, anonymous polling.

MCLE Credits
1.0 practical skills pending for each program.

Can’t Attend?
Video and audio recordings of the March 28 and April 11 CLEs will be available to download along with the program materials shortly after the live program events.
Price: $25. Contact me or visit my online CLE store to place an order.

Registration open now for March and April CLEs!

Earlier this week I asked you to save the date for a special CLE on “Best Practices for Effective and Ethical Office Systems.”  However, there is so much content to share that this program is now being offered as a two-part series:

Best Practices for Intake, Engagement, and Workflow
March 28, 2018 CLE – 10:00 a.m. to 11:00 a.m. Pacific
Best Practices for Docketing, Conflicts, Disengagement, and File Retention
April 11, 2018 CLE – 10:00 a.m. to 11:00 a.m. Pacific

Registration is now open

Visit the Upcoming CLE page or choose one of the registration links below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

Register now for the March 28 CLE!
Register now for the April 11 CLE!

Details coming March 5

Topics and other details for these two programs will be posted on Monday, March 5.

All Rights Reserved [2018] Beverly Michaelis