In re Harris

475

Argued and submitted on March 9, complaint dismissed May 21, 2020

In re Complaint as to the Conduct of

JAMES D. HARRIS,

OSB No. 182040,

Respondent.

(OSB 1847) (SC S066593)

466 P3d 22

The Oregon State Bar brought a disciplinary action against the respondent

lawyer for violating the rules prohibiting the unauthorized practice of law, after

he accepted a job in Oregon and began work as general counsel for Portland

Public Schools pending his admission to the Oregon Bar. A trial panel of the

Disciplinary Board found that the respondent had not committed the charged

violations, because, it concluded that an exception to those rules allowed respon-

dent to practice law on a temporary basis while awaiting reciprocal admission.

Held: On de novo review, the court concluded that respondent did not commit the

charged violations, because his practice of law and his establishment of a legal

presence in Oregon before his admission to the Bar were permitted by RPC 5.5(c),

which permits out-of-state lawyers in good standing to “provide legal services on

a temporary basis in this jurisdiction” under certain circumstances, and because

he did not hold himself out as a member of the Oregon Bar before he was admitted

to the Bar.

The complaint is dismissed.

En Banc

On review of the decision of a trial panel of the Disciplinary

Board.

David J. Elkanich, Holland & Knight LLP, Portland,

argued the cause and filed the brief on behalf of respondent.

Also on the brief was Calon N. Russell.

Theodore W. Reuter, Assistant Disciplinary Counsel,

Tigard, argued the cause and filed the briefs on behalf of

the Oregon State Bar.

PER CURIAM

The complaint is dismissed.

476 In re Harris

PER CURIAM

In this lawyer discipline case, respondent moved

to Oregon from Pennsylvania and began work as general

counsel for Portland Public Schools (PPS) before he became

a member of the Oregon Bar. The Bar charged respondent

with violating RPC 5.5(a), RPC 5.5(b)(1) and (2), and ORS

9.160(1), which prohibit the unauthorized practice of law. A

trial panel of the Disciplinary Board conducted a hearing

and found that respondent had not committed the charged

offenses. The trial panel concluded that respondent’s con-

duct was covered by RPC 5.5(c), which provides an excep-

tion to the rules and statute for a lawyer “provid[ing] legal

services on a temporary basis.” The Bar seeks a ruling that

that exception does not apply, and it urges the court to find

that respondent committed the charged violations and to

suspend respondent for 30 days. For the reasons that follow,

we agree with the trial panel that respondent did not com-

mit the charged violations of the disciplinary rules.

We review decisions of the trial panel de novo. ORS

9.536(3); BR 10.6. We find the following facts by clear and

convincing evidence. BR 5.2 (Bar has burden of establishing

alleged misconduct by clear and convincing evidence).

In early 2017, PPS, through a recruiting firm,

began a nationwide search for a new general counsel. The

recruiting firm called respondent to PPS’s attention, and

PPS ultimately interviewed, and then hired, respondent.

Respondent was a member in good standing of the state

Bars of Pennsylvania and New York when he was hired, but

he was not admitted to the Bar in Oregon. Respondent was

aware that admission to the Oregon Bar was a condition of

the job. Respondent consulted Oregon’s Rules of Professional

Conduct, particularly RPC 5.5(c), to determine whether he

could practice law in Oregon as in-house counsel for PPS

while awaiting his expected reciprocal admission to the

Oregon Bar. That rule provides that a lawyer “admitted in

another jurisdiction, and not disbarred or suspended from

practice in any jurisdiction, may provide legal services on a

temporary basis in this jurisdiction” under certain circum-

stances. RPC 5.5(c).1 Respondent concluded that that rule

1

We set out and discuss RPC 5.5(c) later in this opinion.

Cite as 366 Or 475 (2020) 477

permitted him to begin work for PPS before he was admit-

ted to the Oregon Bar.

Respondent signed an employment agreement with

PPS in May 2017 and began work on June 15. He then

began gathering the information required for an applica-

tion for reciprocal admission. He eventually submitted his

application to the Bar on September 1, 2017. In the appli-

cation, respondent disclosed that he had been working for

PPS. He listed PPS as an employer reference, and PPS paid

the application fee. The Bar did not flag any impropriety in

respondent’s bar admission status at that time.

Approximately two months later, a bar complaint

was filed against respondent in a matter unrelated to any

issue before us here. The Bar ultimately concluded that the

complaint was unfounded. However, in the course of investi-

gating that complaint, an assistant general counsel for the

Bar learned that respondent had been serving as general

counsel to PPS without having yet been admitted to the Bar.

As a result, he sent a letter to respondent in November 2017,

informing him that his work as a lawyer for PPS might be in

violation of the Rules of Professional Conduct that prohibit

the unauthorized practice of law in Oregon.

Later that month, for reasons unrelated to his Bar

admission status, respondent resigned from his position

with PPS. The same day, the Bar forwarded respondent’s

application for reciprocal admission to the Oregon Supreme

Court with a recommendation that he be admitted. The Bar

withdrew that recommendation the next day.2

The Bar then charged respondent with violating

RPC 5.5(a), RPC 5.5(b)(1), and RPC 5.5(b)(2).3 RPC 5.5(a)

and (b) provide:

2

Nevertheless, respondent was admitted to the Oregon Bar in June 2018.

3

As noted, respondent also was charged with violating ORS 9.160, which

provides:

“(1) Except as provided in this section, a person may not practice law

in this state, or represent that the person is qualified to practice law in this

state, unless the person is an active member of the Oregon State Bar.”

RPC 5.5 implements ORS 9.160; accordingly, ORS 9.160 has no independent sig-

nificance. In re Paulson, 346 Or 676, 678 n 1, 216 P3d 859 (2009), adh’d to as mod-

ified on recons, 347 Or 529, 225 P3d 41 (2010). We also note that the exceptions

in the disciplinary rules permitting the otherwise unauthorized practice of law

478 In re Harris

“(a) A lawyer shall not practice law in a jurisdiction

in violation of the regulation of the legal profession in that

jurisdiction, or assist another in doing so.

“(b) A lawyer who is not admitted to practice in this

jurisdiction shall not:

“(1) except as authorized by these Rules or other law,

establish an office or other systematic and continuous pres-

ence in this jurisdiction for the practice of law; or

“(2) hold out to the public or otherwise represent that

the lawyer is admitted to practice law in this jurisdiction.”

Before the trial panel, the Bar argued that, from

the beginning of respondent’s employment with PPS until

he resigned in November 2017, respondent provided legal

advice and expertise to the school district. Among other

things, he regularly participated in internal staff meetings

and reviewed legal documents for PPS, he oversaw the work

of outside legal counsel, and he managed the litigation of

cases in federal and state court. Moreover, the Bar asserted,

respondent held himself out as being admitted to practice

law in this jurisdiction by using the title “General Counsel”

in correspondence and online without clarifying that he was

not admitted to the practice of law in Oregon. Thus, accord-

ing to the Bar, respondent practiced law and held himself

out as a member of the Bar in violation of RPC 5.5(a), RPC

5.5(b)(1), and RPC 5.5(b)(2).

The Bar further contended that respondent’s prac-

tice of law was not permitted by RPC 5.5(c), because, in the

Bar’s view, that rule does not allow out-of-state lawyers to

practice law in Oregon while they await admission to the

Oregon Bar. That rule provides:

“(c) A lawyer admitted in another jurisdiction, and not

disbarred or suspended from practice in any jurisdiction,

may provide legal services on a temporary basis in this

jurisdiction that:

in certain circumstances apply to the statutory prohibition in ORS 9.160 as well.

ORS 9.241(2) (“Notwithstanding ORS 9.160, the Supreme Court may adopt rules

pursuant to the procedures established by ORS 9.490 that allow attorneys who

have not been admitted to practice law in this state to practice law in Oregon on

a temporary basis, including performing transactional or prelitigation work.”).

For those reasons, we do not further discuss the alleged violation of ORS 9.160.

Cite as 366 Or 475 (2020) 479

“(1) are undertaken in association with a lawyer who

is admitted to practice in this jurisdiction and who actively

participates in the matter;

“(2) are in or reasonably related to a pending or poten-

tial proceeding before a tribunal in this or another juris-

diction, if the lawyer, or a person the lawyer is assisting, is

authorized by law or order to appear in such proceeding or

reasonably expects to be so authorized;

“(3) are in or reasonably related to a pending or poten-

tial arbitration, mediation, or other alternate dispute reso-

lution proceeding in this or another jurisdiction, if the ser-

vices arise out of or are reasonably related to the lawyer’s

practice in a jurisdiction in which the lawyer is admitted to

practice and are not services for which the forum requires

pro hac vice admission;

“(4) are not within paragraphs (c)(2) or (c)(3) and arise

out of or are reasonably related to the lawyer’s practice in a

jurisdiction in which the lawyer is admitted to practice; or

“(5) are provided to the lawyer’s employer or its organi-

zational affiliates and are not services for which the forum

requires pro hac vice admission.”

The Bar argued to the trial panel that RPC 5.5(c) applies

only to lawyers who are admitted elsewhere and do not

intend to apply for admission in Oregon. The Bar contended

that, once respondent moved to Oregon, began residing in

this state, and began working for PPS in a job that both he

and PPS intended to be permanent, he was not providing

legal services in Oregon on a “temporary basis.”

The trial panel agreed with the Bar that respon-

dent had engaged in the practice of law during his employ-

ment with PPS. However, it agreed with respondent that his

practice of law in Oregon before his admission to the Oregon

Bar was permissible under the exception to the rule against

the unauthorized practice of law set out in RPC 5.5(c).

The trial panel observed that respondent had met

the first set of preconditions for the exception: He was admit-

ted in other jurisdictions, and he had not been disbarred or

suspended from practice in any jurisdiction. Therefore, the

trial panel stated, RPC 5.5(c) applied if respondent provided

legal services “on a temporary basis” in Oregon and at least

480 In re Harris

one of the five circumstances listed in RPC 5.5(c)(1) - (5) was

present.

In this case, the trial panel concluded that RPC

5.5(c)(5) applied. That paragraph states that a lawyer may

provide legal services on a temporary basis if those services

“are provided to the lawyer’s employer or its organizational

affiliates and are not services for which the forum requires

pro hac vice admission.” The trial panel noted that respon-

dent performed work only for PPS and that his work did not

require pro hac vice admission.

That left the final issue for the trial panel: whether

respondent’s work for PPS was permissible under RPC 5.5(c)

because it was provided “on a temporary basis.” As to that

question, the trial panel noted that the RPCs do not define

the phrase “temporary basis.” However, the trial panel con-

sidered helpful the following comment to the ABA model

rule that is the analogue to RPC 5.5:

“There is no single test to determine whether a lawyer’s

services are provided on a ‘temporary basis’ in this juris-

diction, and may therefore be permissible under division (c).

Services may be ‘temporary’ even though the lawyer pro-

vides services in this jurisdiction on a recurring basis,

or for an extended period of time, as when the lawyer is

representing a client in a single lengthy negotiation or

litigation.”

Comment [6] to ABA Model Rule 5.5.

The trial panel found that respondent’s practice

pending his reciprocal admission to the Oregon Bar was

temporary as that word is commonly understood, because

Bar membership was a condition of respondent’s employ-

ment with PPS. That is, there was no dispute that respon-

dent would have been fired if he had failed to gain admis-

sion to the Oregon Bar. Therefore, the trial panel stated,

respondent’s employment was temporary until he satisfied

that requirement. In so concluding, the trial panel rejected

the Bar’s arguments that the rule does not allow out-of-state

lawyers to practice while awaiting admission in Oregon and

that, in any case, respondent’s practice pending admission

cannot be considered temporary, because he was hired as a

permanent employee. In the trial panel’s view, the common

Cite as 366 Or 475 (2020) 481

understanding of the word “temporary” encompasses prac-

tice pending admission, and the long-term, “permanent”

nature of respondent’s employment with PPS was to com-

mence only after he had been admitted to the Bar; before

that, the trial panel stated, his employment was “unambig-

uously ‘temporary.’ ”

Finally, the trial panel found that respondent did

not violate RPC 5.5(b)(1), which prohibits lawyers who are

not admitted to practice in Oregon from establishing an

office or a continuous presence in Oregon for the practice of

law, or RPC 5.5(b)(2), which prohibits lawyers not admitted

in Oregon from holding themselves out or otherwise repre-

senting that they are admitted to practice law in Oregon.

The trial panel did not make factual findings concerning

whether respondent’s conduct would have violated either

of those rules were it not for the exception in RPC 5.5(c).

Rather, the trial panel stated, simply, that the prohibitions

in RPC 5.5(b)(1) and (2) are

“qualified by the rule’s caveat that it applies ‘except as

authorized by these Rules or other law. . . .’ Thus, respon-

dent was ‘authorized by these Rules’ to do what he did[,]

and a violation of these subsections cannot be established.”

ANALYSIS

The Bar seeks review of the trial panel’s determina-

tion that respondent did not commit any of the charged vio-

lations. In challenging the trial panel’s conclusions, the Bar

makes two principal arguments. First, it reprises its argu-

ment that RPC 5.5(c) does not permit an out-of-state law-

yer to practice law for an employer while awaiting approval

of an application for reciprocal admission. Second, the Bar

argues that, even if this court were to disagree with its first

argument, the trial panel nonetheless erred in finding that

respondent did not violate RPC 5.5(b)(2) by holding himself

out as admitted to practice in Oregon, because RPC 5.5(c)

does not provide a defense to that charge.

A. The Alleged Violations of RPC 5.5(a) and RPC 5.5(b)(1)

We begin by clarifying the perhaps obvious point

that, even though respondent was not a member of the

482 In re Harris

Oregon Bar at the time of his alleged misconduct, he none-

theless was subject to Oregon’s disciplinary rules. RPC

8.5(a) (“A lawyer not admitted in this jurisdiction is also

subject to the disciplinary authority of this jurisdiction if

the lawyer provides or offers to provide any legal services in

this jurisdiction.”). We now turn to the Bar’s first argument,

that respondent violated RPC 5.5(a) and RPC 5.5(b)(1) by

working for PPS as a lawyer before he was admitted to the

Oregon Bar.

To repeat, as relevant here, RPC 5.5(a) prohibits a

lawyer from practicing law in Oregon “in violation of the

regulation of the legal profession,” and, unless an excep-

tion applies, RPC 5.5(b)(1) prohibits a lawyer not admitted

to practice in Oregon from establishing “an office or other

systematic and continuous presence in this jurisdiction for

the practice of law.” Respondent does not dispute that he

practiced law in his capacity as general counsel for PPS and

that he established a systematic and continuous presence in

this jurisdiction before he was admitted to the Bar.4 Thus,

unless the exception for “temporary” legal services set out in

RPC 5.5(c) applies to his conduct, respondent violated RPC

5.5(a) and RPC 5.5(b)(1).

The applicability of that exception boils down to

a single disputed legal issue. Like the trial panel, we find

that respondent satisfied the requirements in RPC 5.5(c)

that he must be admitted in other jurisdictions and must

not have been disbarred or suspended from practice in any

jurisdiction. It is also undisputed that the services he pro-

vided were to his employer and were not services for which a

forum required pro hac vice admission, as required by RPC

5.5(c)(5). It follows that whether respondent was permitted

to practice law and to establish a legal presence in Oregon

before he was admitted to the Oregon Bar turns on whether

he “provide[d] legal services on a temporary basis” within

the meaning of that phrase in RPC 5.5(c).

4

Before the trial panel, respondent argued that his work for PPS was suf-

ficiently administrative or managerial that, taken as a whole, it could not be

considered the practice of law. The trial panel rejected that argument. The trial

panel found that respondent participated in meetings related to risk assessment

and policy matters, reviewed legal documents, and advised the school board at

its meetings, and it concluded that that work amounted to the practice of law.

Respondent has abandoned that argument in this court.

Cite as 366 Or 475 (2020) 483

When interpreting a disciplinary rule, the court

looks to “the wording of the rule, read in context.” In re

Hostetter, 348 Or 574, 583, 238 P3d 13 (2010) (citation omit-

ted). Turning first to the text, we note, as did the trial panel,

that the disciplinary rules do not define the phrase “tempo-

rary basis.” We also observe that dictionary definitions of

the word “temporary” add nothing to the common under-

standing of that word—as lasting for a limited time5 —and,

thus, do not assist us in determining what it means to “pro-

vide legal services on a temporary basis.” In fact, the Bar

conceded at oral argument that the issue before the court

is not whether the five-month period in which respondent

worked for PPS before his admission to the bar was inher-

ently too long to be considered “temporary.” Indeed, the Bar

also conceded that, in certain circumstances, an out-of-state

lawyer’s “temporary” provision of legal services in Oregon

could continue for many months or even years.

Rather, as we have stated, the Bar contends that

only lawyers who intend to work in Oregon for a limited

time can avail themselves of the exception; a lawyer who

accepts a permanent job cannot be said to intend to pro-

vide legal services on a temporary basis. Respondent, on the

other hand, argues that his provision of legal service with-

out being admitted to the Oregon Bar would necessarily be

temporary; if he were not admitted, he would be fired. Thus,

as the parties’ arguments reflect, the applicability of RPC

5.5(c) does not turn on the meaning of the word “temporary.”

Instead, the parties dispute, and we decide, what condition

or circumstance must be temporary for the exception to

apply.

Rule 5.5 covers both “Unauthorized Practice of

Law” and “Multijurisdictional Practice.” The purpose of

RPC 5.5(c) is to set out circumstances in which an out-of-

state lawyer “may provide legal services on a temporary

basis” without Bar membership. Thus, it is plausible to infer

5

Webster’s Third New Int’l Dictionary defines “temporary” as “lasting for a

time only : existing or continuing for a limited time : IMPERMANENT, TRANSITORY.”

Webster’s Third New Int’l Dictionary 2353 (unabridged ed 2002). The definition in

Black’s Law Dictionary is virtually identical: “Lasting for a time only; existing

or continuing for a limited (usu. short) time; transitory.” Black’s Law Dictionary

1767 (11th ed 2019).

484 In re Harris

from the text that the “temporary basis” during which an

out-of-state lawyer “may provide legal services” refers to the

period in which the lawyer is not admitted to the Oregon

Bar—even if the lawyer has accepted employment and is

applying for admission in Oregon.

The rest of RPC 5.5(c) is consistent with that view

of the rule. Two of the five circumstances set out in RPC

5.5(c)(1) to (5) in which a lawyer may provide legal services

in Oregon without being admitted to the Oregon Bar clearly

contemplate a situation in which the lawyer’s services are

provided on a matter of limited duration, tying the legal

services to a specific proceeding. Paragraph (c)(2) applies

when the legal services are related to a pending proceeding

before a tribunal, where the lawyer reasonably expects to be

authorized to appear in that proceeding. And RPC 5.5(c)(3)

applies when the legal services relate to a pending arbitra-

tion or mediation, for which pro hac vice admission is not

required.

The other three circumstances contain no dura-

tional limitation and are not tied to a specific proceeding.

Paragraph (c)(1) applies when the legal services are under-

taken in association with and with the active participation

of a lawyer who is admitted in Oregon. Paragraph (c)(4)

applies when the legal services are not related to a pend-

ing litigation or arbitration but are reasonably related to

the lawyer’s out-of-state practice. And RPC 5.5(c)(5) applies

when the services are provided to the lawyer’s employer and

pro hac vice admission is not required. Each of those excep-

tions would encompass a situation in which an out-of-state

lawyer in good standing is awaiting admission in Oregon,

even after having accepted a permanent job. Thus, neither

the disputed phrase “temporary basis” nor the balance of

RPC 5.5(c) suggests that the rule cannot apply to out-of-

state lawyers in good standing who have accepted employ-

ment in Oregon and are awaiting admission to the Bar.

We reject the Bar’s contrary view that “temporary

basis” means providing legal services in Oregon only when

the out-of-state lawyer has not accepted employment in

Oregon that would require admission to the Oregon Bar.

First, with respect to four of the five circumstances in which

Cite as 366 Or 475 (2020) 485

a lawyer may provide legal services without Bar member-

ship, no authorization by law or order need ultimately be

sought. The fifth, RPC 5.5(c)(2), expressly permits a lawyer

to provide legal services in litigation pending pro hac vice

admission. Reading paragraphs (1) through (5) together,

then, suggests that the existence of a pending or intended

application for authorization to practice in the jurisdiction

simply has no bearing on the applicability of the exception.

Indeed, there is no principled reason to allow practice pend-

ing admission pro hac vice and not pending other types of

Bar admission.

The Bar also posits a practical problem with read-

ing RPC 5.5(c) to permit “practice pending admission.” In

its view, “the exception would swallow the rule” by allow-

ing a lawyer to provide legal services in Oregon indefinitely,

so long as the lawyer intends to apply for Bar membership

at some point. We need not base our decision today on that

speculative concern. “Temporary” is not synonymous with

“indefinite,” and this case does not require us to decide the

outer boundaries of the concept of “temporary,” because

respondent here applied for Bar admission within a reason-

able time after commencing employment with PPS. As we

have stated, his practice pending admission was temporary

within any definition of the word.

For the foregoing reasons, we hold that an out-of-

state lawyer in good standing in another jurisdiction pro-

vides legal services “on a temporary basis,” as that phrase

is used in RPC 5.5(c), if that lawyer provides legal services

pending admission to the Bar and meets at least one of the

criteria set out in RPC 5.5(c)(1) to (5), even if the lawyer has

accepted permanent employment in Oregon. In this case, as

we have stated, respondent met the requirements of RPC

5.5(c)(5): He was admitted in other jurisdictions, he had not

been disbarred or suspended from practice in any jurisdic-

tion, and he provided legal services to his employer and

no forum required admission pro hac vice. He applied for

reciprocal Bar admission within a reasonable time after he

began employment for PPS, and his continued employment

was conditioned on his admission to the Bar. It follows that

respondent did not violate RPC 5.5(a) or RPC 5.5(b)(1).

486 In re Harris

B. The Alleged Violations of RPC 5.5(b)(2)

The Bar also contends that the trial panel erred in

concluding that respondent did not violate RPC 5.5(b)(2),

which provides:

“(b) A lawyer who is not admitted to practice in this

jurisdiction shall not:

“* * * * *

“(2) hold out to the public or otherwise represent that

the lawyer is admitted to practice law in this jurisdiction.”

The trial panel made no findings concerning whether respon-

dent’s conduct violated RPC 5.5(b)(2). Rather, it found that he

had not violated that rule, because it concluded that, as with

practicing law and establishing a continuous legal presence

in Oregon, respondent was entitled to hold himself out as

permitted to practice in this jurisdiction under RPC 5.5(c).

The Bar repeats its contention that respondent vio-

lated RPC 5.5(b)(2) by using the title “General Counsel” in

correspondence and online and by attending meetings on

behalf of PPS without clarifying that he was not admitted

to the practice of law in Oregon. Further, the Bar now also

argues that, even if respondent were permitted under RPC

5.5(c) to practice law and to establish a continuous presence

in Oregon for the practice of law before he became a member

of the Bar, that rule did not permit him to hold himself out

as admitted to the Bar in Oregon during that period.

We agree that RPC 5.5(c) does not permit lawyers

who are not admitted to the Oregon Bar to hold themselves

out or represent themselves as admitted to practice law in

this jurisdiction. Rule 5.5(c), as we have stated, permits

out-of-state lawyers in certain circumstances to practice

law in Oregon without being a member of the Oregon Bar.

However, nothing in RPC 5.5(c) suggests that out-of-state

lawyers may misrepresent themselves as admitted to prac-

tice in this jurisdiction.

The Bar does not offer any evidence that respon-

dent affirmatively misrepresented himself to the public

as a member of the Oregon Bar. Rather, in support of its

argument that respondent violated RPC 5.5(b)(2), the Bar

Cite as 366 Or 475 (2020) 487

relies on the undisputed facts that respondent used the

title “General Counsel” in correspondence and online, that

he attended meetings on behalf of PPS, and that he other-

wise acted as a lawyer for PPS, without clarifying in each

instance that he was not admitted to the practice of law in

Oregon. The Bar contends that lawyers who provide legal

services in a jurisdiction where they are not admitted to the

Bar and do not clarify the terms under which they are prac-

ticing “hold themselves out” as admitted in the jurisdiction,

because members of the public will reasonably believe that

they are admitted to the Bar in that jurisdiction. The Bar

further contends that this court’s decision in In re Kumley,

335 Or 639, 75 P3d 432 (2003), and RPC 7.5(b) support its

interpretation. As we shall explain, both those citations to

authority are inapposite.

In Kumley, the respondent was an inactive member

of the Oregon Bar. When he became inactive, he signed a

form that included the following statement: “Inactive mem-

bers [of the Bar] may not practice law or hold themselves

out as attorneys in the State of Oregon.” Kumley, 335 Or

at 641 (emphasis omitted). The respondent also was not

admitted to practice in any other jurisdiction. The respon-

dent took steps toward becoming a candidate for a seat in

the state legislature. On forms that he submitted to various

state agencies in connection with that candidacy, he listed

his “occupation” as “attorney.” Id. at 642-43. That statement

was ultimately included in the voters’ pamphlet. Id. at 642.

After the respondent lost the election, the Bar received an

ethics complaint against the respondent based on his repre-

sentations of himself as an attorney on those forms and in

the voters’ pamphlet. Id. at 643. Based on those represen-

tations, the Bar ultimately charged the respondent, among

other things, with violating former DR 1-102(A)(3) (it is mis-

conduct to engage in conduct involving dishonesty, fraud,

deceit or misrepresentation)6 and ORS 9.160 (only active

members of the Bar may practice law or represent them-

selves as qualified to practice law). Id.

6

Former DR 1-102(A)(3) is the predecessor of RPC 8.4(a)(3), which also pro-

vides that it is misconduct to “engage in conduct involving dishonesty, fraud,

deceit or misrepresentation that reflects adversely on the lawyer’s fitness to prac-

tice law[.]”

488 In re Harris

In assessing whether the respondent committed

a misrepresentation in violation of former DR 1-102(A)(3)

when he referred to himself as an attorney even though

he was not authorized to practice law in any jurisdiction,

the court began by stating that “one inference that reason-

ably arises from a statement that a person is an attorney is

that the person is a member of a bar.” Id. at 645. The court

stated that, at the time that the respondent submitted the

forms, he was a member of the Oregon Bar, albeit an inac-

tive member, and, therefore, standing alone, his use of the

word “attorney” would not be a misrepresentation that could

serve as a basis for discipline under former DR 1-102(A)(3).

Id. However, the court stated, that word did not stand alone.

Rather, the respondent had used the word “attorney” to

describe his present “occupation.” Id. The court held that,

in so doing, the respondent necessarily represented that he

was an active attorney at that time. Id. And because he had

not listed his past occupation as attorney, the court inferred

that he knowingly chose to create the false impression that

he was presently practicing law. Id. The court also found the

respondent guilty of violating ORS 9.160, because, in calling

himself an attorney, the respondent represented himself as

qualified to practice law. Id. at 650.

The court’s decision in Kumley does not assist the

Bar. As we have just explained, the court stated in Kumley

that referring to oneself as an “attorney” would not be a mis-

representation even for an inactive lawyer, because the word

“attorney” merely conveys that a lawyer is a member of a

bar. In this case, at all relevant times, respondent was an

active member of a bar, and, as we have already held, he was

authorized to practice law in Oregon under RPC 5.5(c). Thus,

when respondent referred to himself as General Counsel of

PPS or attended meetings as PPS’s lawyer, respondent con-

veyed that he was authorized to practice law, which he was;

he did not imply that he was a member of the Oregon Bar.

We also conclude that RPC 7.5(b) does not sup-

port the Bar’s interpretation of RPC 5.5(b)(2). RPC 7.5(b)

addresses how law firms with offices in more than one state

must identify lawyers’ bar admission status on letterhead

and the like:

Cite as 366 Or 475 (2020) 489

“A law firm with offices in more than one jurisdiction

may use the same name or other professional designation

in each jurisdiction, but identification of the lawyers in an

office of the firm shall indicate the jurisdictional limita-

tions on those not licensed to practice in the jurisdiction

where the office is located.”

But RPC 7.5(b) addresses a different concern than

RPC 5.5(b)(1). A law firm that has offices in more than one

jurisdiction may have lawyers who are admitted in cer-

tain jurisdictions and not in others, and, therefore, some of

the firm’s lawyers may not be qualified to practice law in

a jurisdiction in which the firm’s letterhead is used. Using

the same letterhead in all the jurisdictions in which a law

firm has offices, then, may give a false impression about the

firms’ lawyers’ admission status. That is, if such a firm does

not identify the jurisdictional limitations of those lawyers

not licensed to practice in a jurisdiction where an office is

located, those unlicensed lawyers effectively hold themselves

out as qualified to practice in that jurisdiction, in violation

of RPC 5.5(b)(2) and ORS 9.160. That rule does not shed

light on respondent’s situation, because he was qualified to

practice law in this jurisdiction on a temporary basis under

RPC 5.5(c). Therefore, respondent’s failure to clarify his Bar

admission status while using the “General Counsel” title in

correspondence and with the public did not create the risk of

misleading the public that is contemplated by RPC 7.5(b).

Accordingly, on de novo review, we conclude that the

Bar has not proved by clear and convincing evidence that

respondent violated RPC 5.5(b)(2). We therefore dismiss

that charge.

The complaint is dismissed.