Professionalism in Times of Disruption

Home , Ellen Rosenblum, Jim Acosta, The New Abnormal, Thomas Tongue

Cosponsored by the Professionalism Commission

Thursday, December 14, 2017 9 a.m.–12:15 p.m.

2 Ethics credits and 1 Access to Justice credit PROFESSIONALISM IN TIMES OF DISRUPTION

PROGRAM PLANNERS Sandra Hansberger, Chair, Attorney at Law, Portland Professor Steve Johansen, Vice Chair, Lewis & Clark Law School, Portland The Honorable John Acosta, United States District Court, Portland The Honorable Kathleen Dailey, Multnomah County Circuit Court, Portland The Honorable Daniel Harris (retired), Harris Mediation & Arbitration, Wilsonville The Honorable Mary Mertens James, Marion County Circuit Court, Salem Scott Hunt, Busse & Hunt, Portland Stephen McCarthy, McCarthy Law Firm LLC, Portland Parna Mehrbani, Lane Powell PC, Portland

OREGON STATE BAR PROFESSIONALISM COMMISSION The Honorable James L. Fun, Jr., Chair Scott N. Hunt Parna Mehrbani, Vice Chair The Honorable Mary Mertens James The Honorable John V. Acosta Steve Johansen The Honorable Richard Baldwin Michael Levelle Carol Bernick The Honorable Marilyn Litzenberger Jermaine Brown The Honorable Cindee Matyas Dominic Campanella Stephen P. McCarthy The Honorable Kathleen Dailey Joseph L. Franco The Honorable Edwin J. Peterson Sandy Hansberger Emily Rena-Dozier John M. Haroldson Maria Saez-Tatman Daniel L. Harris The Honorable Timothy Sercombe Helen Hierschbiel Yvonne Ana Tamayo

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

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Professionalism in Times of Disruption ii TABLE OF CONTENTS

Schedule ...... v

Faculty ...... vii

1. Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal” . . . 1–i — Attorney General Ellen Rosenblum, Oregon Department of Justice, Salem, Oregon

2. Racial Profiling and Injustice in Times of National Security: The Critical Role of Lawyers and Professionalism—Presentation Slides ...... 2–i — Peggy Nagae, Peggy Nagae Consulting, Portland, Oregon

3. Marley and the Judge: Professionalism in the Age of Disruption—Presentation Slides . . 3–i — Professor Steve Johansen, Lewis & Clark Law School, Portland, Oregon

4. Reflecting on and Responding to the Changing Landscape 4–i — Moderator: Daniel Santos, Willamette University College of Law, Salem, Oregon — Jennifer Espinola, Dean of Students, University of Oregon School of Law, Eugene, Oregon — Julia Hagan, Gevurtz Menashe Larson & Howe PC, Portland, Oregon — Thomas Tongue, Dunn Carney Allen Higgins & Tongue LLP, Portland, Oregon

Professionalism in Times of Disruption iii Professionalism in Times of Disruption iv SCHEDULE

8:30 Registration 9:00 Program Overview Sandra Hansberger, Chair, Professionalism Commission 9:05 Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal” F Professionalism in the face of insults to the justice system F The new world of “progressive federalism” Attorney General Ellen Rosenblum, Oregon Department of Justice, Salem 9:35 Racial Profiling and Injustice in Times of “National Security” F Japanese-American incarceration today: the critical role of attorneys and judges to defend the constitution F Lessons we have not learned yet Peggy Nagae, Peggy Nagae Consulting, Portland 10:30 Break 10:40 Marley and the Judge: The Coarsening of Our Communications F Tracing changes in our written communications F How what we say affects what we do Professor Steve Johansen, Lewis & Clark Law School, Portland 11:15 Reflecting on and Responding to the Changing Landscape F Reflections on disruption F Approaches to communication F A pathway moving forward Moderator: Daniel Santos, Willamette University College of Law, Salem Jennifer Espinola, Dean of Students, University of Oregon School of Law, Eugene Julia Hagan, Gevurtz Menashe Larson & Howe PC, Portland Thomas Tongue, Dunn Carney Allen Higgins & Tongue LLP, Portland 12:15 Adjourn

Professionalism in Times of Disruption v Professionalism in Times of Disruption vi FACULTY

Jennifer Espinola, Dean of Students, University of Oregon School of Law, Eugene. Dean Espinola has served as Dean of Students at the University of Oregon since 2013. She has been a higher education professional for 20 years, with work in leadership development and student affairs. Dean Espinola serves on the Oregon State Bar Professionalism Commission and the National Association of Law Student Affairs Professionals Professional Development Committee.

Sandra Hansberger, Attorney at Law, Portland. Ms. Hansberger is past chair of the Oregon Bench Bar Commission on Professionalism and current chair of the Commission’s CLE Committee. She served as the Executive Director of the Campaign for Equal Justice for more than a decade, and she was a Clinical Law Professor at Lewis and Clark Law School for nearly 20 years, teaching practical lawyering skills and supervising students in representing low-income Oregonians in employment matters. She is a recipient of the Oregon State Bar Award of Merit, the Multnomah Bar Association Professionalism Award, and the Oregon Women Lawyers Justice Betty Roberts Award.

Julia Hagan, Gevurtz Menashe Larson & Howe PC, Portland. Ms. Hagan focuses her practice on family law. She volunteers as a court-appointed attorney for children in family law disputes (Multnomah County) and has been active with Oregon Women Lawyers and the Multnomah Bar Association. Ms. Hagan is the recipient of the 2017 Justice Edwin Peterson Professionalism Award by the Oregon Bench Bar Professionalism Commission and the 2012 Leadership Award from the Oregon State Bar Juvenile Law Section.

Peggy Nagae, Peggy Nagae Consulting, Portland. Ms. Nagae has extensive expertise in the fields of organizational change, communication, leadership and team coaching, mediation, cultural competence, team building, workforce diversity, strategic planning, and potentiating the human spirit at work. Her clients include corporations, governmental bodies, nonprofit organizations, law firms, and judicial associations throughout the United States. Ms. Nagae is past president and the National Asian Pacific American Bar Association Diversity Task Force, past vice chair of the American Bar Association Commission on Racial and Ethnic Diversity in the Profession, and past president of the Asian Bar of Washington. She has practiced law as a criminal and civil trial attorney, worked as director of associates at a Seattle litigation firm, served as Assistant Dean for Academic Affairs at the University of Oregon School of Law and as Affirmative Action Director at Northwestern School of Law, and has been an adjunct professor in dispute resolution at the University of Puget Sound School of Law (now Seattle University). Ms. Nagae holds certificates from the Institute for Educational Management at Harvard University, the Covey Leadership Center, and several dispute resolution centers. She received the 2017 Spirit of Excellence Award from the ABA Commission on Racial and Ethnic Diversity in the Profession.

Professor Steve Johansen, Lewis & Clark Law School, Portland. Professor Johansen teaches Legal Analysis and Writing, Regulation and Ethics of Lawyers, and an Advanced Legal Writing Seminar. He serves on the Oregon Bench/Bar Commission on Professionalism, is is past president of the Legal Writing Institute, and is past chair of the American Association of Law Schools Section on Legal Writing, Research, and Reasoning. Professor Johansen has published articles on the politics of legal writing, interpreting Oregon statutes, and most recently on the ethical limits of storytelling in the law. He is a frequent participant in international legal skills training. Professor Johansen is the recipient of the 2009 Association of Legal Writing Directors Thomas F. Blackwell Award.

Professionalism in Times of Disruption vii FACULTY (Continued)

Attorney General Ellen Rosenblum, Oregon Department of Justice, Salem. A former federal prosecutor and state trial and appellate judge, Attorney General Rosenblum was first elected to a four-year term as Oregon’s 17th Attorney General in November 2012 and was reelected to a second term November 8, 2016. She is the first woman to serve as Oregon Attorney General. Her priorities include consumer protection and civil rights—advocating for and protecting Oregon’s children, seniors, immigrants and crime victims and those saddled with education-related debt. She is committed to assisting district attorneys and local law enforcement in prosecuting elder abuse and complex crimes and has made crimes against children as well as consumer internet privacy high priorities. Attorney General Rosenblum has been active in local and national organizations of lawyers, judges, and attorneys general. She has served on the National Association of Attorneys General Executive Committee, is the immediate past chair of the Conference of Western Attorneys General, is past secretary of the American Bar Association, and chairs the ABA Section of State & Local Government Law. Daniel Santos, Willamette University College of Law, Salem. Mr. Santos recently was Associate Dean for Student Affairs and Administration at Willamette University College of Law. Before that, he served four Oregon governors as senior policy advisor, legal counsel, and other capacities. His numerous honors include the Oregon Hispanic Bar Association Paul J. DeMuniz Professionalism Award, the Oregon Women Lawyers Judge Mercedes Deiz Award, and a recognition by the Oregon State Bar Diversity and Inclusion Office. Thomas Tongue, Dunn Carney Allen Higgins & Tongue LLP, Portland. Mr. Tongue serves as the firm’s Litigation Group Practice Leader and managing partner. His practice centers on complex civil litigation and health law. He is past president of the American College of Trial Lawyers. He has received professionalism awards from both the Multnomah Bar Association and the Oregon Bar Litigation Section, and he also received the Judge Learned Hand Lifetime Achievement Award from the Oregon Area Jewish Community.

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Attorney General Ellen Rosenblum Oregon Department of Justice Salem, Oregon

Contents First Amended Complaint for Declaratory and Injunctive Relief—New York v. Trump, No. 17-CV-5228 (E.D.N.Y.) ...... 1–1 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

STATES OF NEW YORK, MASSACHUSETTS, WASHINGTON, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, HAWAII, ILLINOIS, IOWA, NEW MEXICO, NORTH CAROLINA, CIVIL ACTION NO. 1:17-cv-05228 OREGON, PENNSYLVANIA, (NGG) (JO) RHODE ISLAND, VERMONT, and VIRGINIA, FIRST AMENDED COMPLAINT Plaintiffs, FOR DECLARATORY AND INJUNCTIVE RELIEF v.

DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and the UNITED STATES OF AMERICA,

Defendants.

INTRODUCTION

1. The States of New York, Massachusetts, Washington, Colorado, Connecticut,

Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode

Island, Vermont, Virginia and the District of Columbia (the “States”) bring this action to protect

the States—including their residents, employers, small governmental jurisdictions, regulatory

systems, and educational institutions—against the unlawful actions of the President of the United

States and the federal government.

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2. Since 2012, the Deferred Action for Childhood Arrivals (“DACA”) program has

protected from deportation and extended work authorization to approximately 800,000 young

people who grew up in this country, most of whom have known no home other than the United

States.

3. DACA has allowed these young people to live, study, and work in the States (and

throughout the country) as contributors and leaders in their communities. DACA grantees attend

public and private universities, and are employed by companies, nonprofit organizations, and

governmental agencies and institutions, all of which benefit from their skills and productivity.

DACA grantees also provide financial support to their families, help to grow the economy, and

contribute significantly to State and local revenues and tax bases.

4. On September 5, 2017, the Defendants definitively and categorically terminated the

DACA program, as detailed in a U.S. Department of Homeland Security (“DHS”) Memorandum

(“DHS Memorandum”). See Ex. 74 (Memorandum from Acting Secretary Elaine Kelly to James

McCament, Acting Director of U.S. Citizenship and Immigration Services, Rescission of Deferred

Action for Childhood Arrivals, September 5, 2017).

5. Pursuant to the DHS Memorandum, the federal government will only issue

renewals for grantees whose benefits expire before March 5, 2018, provided they apply for renewal

by October 5, 2018. DHS immediately ceased accepting all new applications under DACA.

6. Ending DACA is a culmination of President’s Trump’s oft-stated commitments—

whether personally held, stated to appease some portion of his constituency, or some combination

thereof—to punish and disparage immigrants, especially those with Mexican roots, who make up

more than 78 percent of DACA grantees. See Ex. 1 (Updated USCIS, Consideration of Deferred

Action for Childhood Arrivals Fiscal Years 2012-2017, June 8, 2017).

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7. The consequence of the President’s decision is that hundreds of thousands of young

people who have availed themselves of the program will ultimately lose its protections, and will

be exposed to removal when their authorizations expire.

8. Individuals who have relied on DACA are now even more vulnerable to removal

than before the program was initiated, as they turned over sensitive information to the federal

government in their applications. Despite the federal government’s repeated promises that it would

not use such information to conduct enforcement measures, the DHS Memorandum does not

explain how the government will keep that information secure, nor does it provide any assurances

that immigration enforcement agents will not use such information to find and remove those who

applied for DACA.

9. Terminating DACA will harm hundreds of thousands of the States’ residents, injure

State-run colleges and universities, upset the States’ workplaces, damage the States’ economies,

hurt State-based businesses and nonprofits, negatively affect the States’ small governmental

jurisdictions, and disrupt the States’ statutory and regulatory interests.

10. The States respectfully request that the Court invalidate the portions of the DHS

Memorandum challenged here. Further, the States ask that the Court enjoin the federal government

from using personal information gathered for the DACA program in immigration enforcement.

JURISDICTION AND VENUE

11. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a).

12. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1).

Defendants are United States agencies or officers sued in their official capacities. The State of

New York is a resident of this judicial district, and a substantial part of the events or omissions

giving rise to this Complaint occurred within the Eastern District of New York.

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13. The States bring this action to redress harms to their proprietary and sovereign

interests and their interests as parens patriae.

PARTIES

PLAINTIFFS

14. The Plaintiff States of New York,1 Massachusetts, Washington, Colorado,

Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon,

Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia, represented by and

through their Attorneys General,2 are sovereign states3 of the United States of America.

15. The States are aggrieved and have standing to bring this action because of the

injuries to the States caused by the termination of DACA, including immediate and irreparable

injuries to their sovereign, quasi-sovereign, and proprietary interests.

DEFENDANTS

16. Defendant Donald Trump is the President of the United States, and authorized the

issuance of the DHS Memorandum that purports to terminate DACA. He is sued in his official

capacity.

17. Defendant DHS is a federal cabinet agency responsible for implementing the

DACA program. DHS is a Department of the Executive Branch of the U.S. Government, and is an

agency within the meaning of 5 U.S.C. § 552(f).

1 The State of New York is represented by and through its Attorney General, Eric T. Schneiderman. Governor Andrew M. Cuomo is the chief executive officer of the State of New York and is responsible for overseeing the operations of the State of New York and ensuring that its laws are faithfully executed. 2 Colorado is represented by and through Governor John W. Hickenlooper’s Chief Legal Counsel, who has been designated a Special Assistant Attorney General for purposes of representing Colorado in this matter. 3 The District of Columbia, which is a municipal corporation empowered to sue and be sued, and is the local government for the territory constituting the permanent seat of the federal government of the United States, shall be included herein as a “State” for ease of reference. 4

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18. Defendant United States Citizenship and Immigration Services (“USCIS”) is an

Operational and Support Component agency within DHS. USCIS is the sub-agency responsible

for administering the DACA program.

19. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an Operational

and Support Component agency within DHS. ICE is responsible for enforcing federal immigration

law, including identifying, apprehending, detaining, and removing non-citizens.

20. Defendant Elaine C. Duke is the Acting Secretary of the DHS. She is responsible

for implementing and enforcing the Immigration and Nationality Act, and oversees USCIS and

ICE. She is sued in her official capacity.

21. Defendant the United States of America includes all government agencies and

departments responsible for the implementation and termination of the DACA program.

GENERAL ALLEGATIONS

Establishment of the DACA Program.

22. On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a

memorandum establishing the DACA program (the “2012 DACA Memorandum”). See Ex. 13

(2012 DACA Memorandum). Under DACA, “certain young people who were brought to this

country as children and know only this country as home” could request deferred action for a period

of two years, subject to renewal. Id. at 1-2. DACA grantees also were eligible for work

authorizations so that they could work legally in the United States during the deferred action

period, pursuant to long-standing federal regulation. See id.; 8 C.F.R. § 274a.12(c)(14) (providing

that “an alien who has been granted deferred action” may obtain work authorization upon

demonstrating economic necessity).

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23. Deferred action is a well-established form of prosecutorial discretion under which

the federal government forbears from taking removal action against an individual for a designated

period of time. According to the 2012 DACA memorandum, it was appropriate for the government

to exercise such discretion for DACA grantees because immigration laws are not “designed to

remove productive young people to countries where they may not have lived or even speak the

language.” See Ex. 13 at 1.

24. The 2012 DACA Memorandum provided that an applicant could be considered for

an exercise of prosecutorial discretion only if he or she:

a. came to the United States before the age of sixteen;

b. continuously resided in the United States for at least five years preceding

June 15, 2012, and was present in the United States on that date;

c. was in enrolled in school on the date of his/her application, had graduated from

high school, had obtained a general education development certificate, or was

an honorably discharged veteran of the Coast Guard or Armed Forces of the

United States;

d. had not been convicted of a felony offense, a significant misdemeanor offense,

or multiple misdemeanor offenses, and did not otherwise pose a threat to

national security or public safety; and

e. was not over the age of thirty on June 15, 2012.

Id. at 1.

25. USCIS described DACA as follows: “Deferred action is a discretionary

determination to defer a removal action of an individual as an act of prosecutorial discretion. For

purposes of future inadmissibility based upon unlawful presence, an individual whose case has

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been deferred is not considered to be unlawfully present during the period in which deferred action

is in effect. An individual who has received deferred action is authorized by DHS to be present in

the United States, and is therefore considered by DHS to be lawfully present during the period

deferred action is in effect. However, deferred action does not confer lawful status upon an

individual, nor does it excuse any previous or subsequent periods of unlawful presence.” See Ex.

14, Question 1 (USCIS Help Center, DACA FAQs).

The DACA Application Process.

26. Under DACA, “[a]ll individuals who believe[d] they [met] the guidelines” could

“affirmatively request consideration of DACA from USCIS” through an established process. After

receiving the applicant’s forms, evidence, supporting documents and application fee, USCIS

“review[ed] them for completeness,” considered complete applications “on an individual, case-by-

case basis,” and notified applicants of its determination in writing. See Ex. 16 (USCIS Help Center,

How do I request consideration of DACA?).

27. In order to apply for the DACA program, applicants had to submit extensive

documentation establishing that they met the eligibility criteria. Applicants also had to submit a

Form I-765 Application for Employment Authorization, and pay a $495 fee. See Ex. 14 at

Questions 28-41; see also Ex. 17 (USCIS, I-821D, Consideration of Deferred Action for

Childhood Arrivals) (explaining that the filing fee for a DACA application could not be waived).

28. DACA applicants were required to undergo biometric and biographic background

checks. When conducting these checks, DHS reviewed the applicant’s biometric and biographic

information “against a variety of databases maintained by DHS and other federal government

agencies.” See Ex. 14 at Question 23. If any information “indicate[d] that [the applicant’s] presence

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in the United States threaten[ed] public safety or national security,” the applicant was ineligible

for DACA absent “exceptional circumstances.” Id. at Question 65.

29. Once individuals were admitted into the DACA program, internal USCIS

“Standard Operating Procedures” dictated that, absent an “Egregious Public Safety” issue, DACA

grantees were not to be terminated from the program until the government provided a “Notice of

Intent to Terminate” which “thoroughly explain[ed]” the grounds for the termination.” See Ex. 18

at 132, Appendix I (DHS, National Standard Operating Procedures (SOP): Deferred Action for

Childhood Arrivals, Apr. 4, 2013). DHS policy further provided that recipients of such notice

should be afforded 33 days to “file a brief or statement contesting the grounds cited in the Notice

of Intent to Terminate” prior to termination of participation in the DACA program. Id.

30. At the expiration of their two-year DACA term, grantees could seek renewal, and

were considered for renewal if they met the guidelines for consideration as well as other specified

criteria. See Ex.19(USCISHelpCenter,How will USCIS evaluate my request for renewal of

DACA?).

Benefits Provided Under the DACA Program.

31. DACA confers numerous benefits on its grantees.

32. Notably, DACA grantees are granted the right not to be arrested or detained based

solely on their immigration status during the time period during which their deferred action is in

effect. See Ex. 14 at Question 9.

33. DACA grantees also are granted eligibility for work authorization. As USCIS has

explained, “an individual whose case has been deferred is eligible to receive employment

authorization for the period of deferred action . . . .’” Id. at Question 1.

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34. DACA grantees are eligible to receive certain public benefits. These include Social

Security, retirement, and disability benefits. See 8 U.S.C. §§ 1611(b)(2)-(3), 1621(d).

35. DACA enables grantees to open bank accounts, obtain credit cards, start businesses,

purchase homes and cars, and conduct other aspects of daily life that are otherwise often

unavailable for undocumented immigrants. See Ex. 5 ¶ ¶ 12, 16, 22 (Decl. Wong).

36. DACA has enabled hundreds of thousands of young people “to enroll in colleges

and universities, complete their education, start businesses that help improve our economy, and

give back to our communities as teachers, medical professionals, engineers, and entrepreneurs—

all on the books.” See Ex. 15 (Letter from Secretary Jeh Charles Johnson to Rep. Judy Chu, Dec.

30, 2016).

37. These positive effects have rippled throughout the States’ economies. As DHS

recognized more than four years after the implementation of DACA, our nation “continue[s] to

benefit . . . from the contributions of those young people who have come forward and want nothing

more than to contribute to our country and our shared future.” Id.

38. Terminating DACA would not only rip away the life-changing benefits to

individual DACA grantees, but would also reverse the benefits to the community at large,

including to innumerable small businesses, non-profits, and governments.4

4 See e.g., Ex. 20 (Ike Brannon, The Economic and Fiscal Impact of Repealing DACA, the Cato Institute, Jan. 18, 2017) (“The deportation of DACA participants would cost the American economy billions of dollars, as well as billions of tax dollars foregone, while doing little to address the true concerns that Americans may have about unauthorized immigrants.”); Ex. 21 (Tom Wong, et al., DACA Grantees’ Economic and Educational Gains Continue to Grow, Center for American Progress, Aug. 28, 2017) (quoting multiple DACA grantees whose small businesses will suffer or even close if DACA is terminated); Ex. 22 (Tom Wong et al., New Study of DACA Beneficiaries Shows Positive Economic and Educational Outcomes, Center for American Progress, Oct. 18, 2016) (study showing that 9 percent of DACA grantees work at non-profits, a significant percentage work in education, and 6 percent started their own business, including one owner who employs nine people and hopes to continue to grow and “hire even more people from the community” [internal brackets and quotation marks omitted]).

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The Government’s Assurances That the Information Provided by DACA Applicants Would be Kept Confidential and Not Used for Enforcement.

39. When the DACA program was first implemented, many eligible young people were

reluctant to voluntarily disclose information that could help facilitate their removal from the United

States. To encourage applications, DHS repeatedly promised applicants that information they

provided as part of the DACA application process would “not later be used for immigration

enforcement purposes.” See Ex. 15 (Letter from Sec’y Johnson).

40. USCIS affirmatively represented to DACA applicants that, except in limited

circumstances, “[i]nformation provided in [a DACA request] is protected from disclosure to ICE

and CBP for the purpose of immigration enforcement proceedings.” See Ex.25(USCISHelp

Center, Will the information I share in my request for DACA be used for immigration enforcement

purposes?).

41. USCIS affirmatively represented to DACA applicants that, except in limited

circumstances, their case would not be “referred to ICE for purposes of removal proceedings” even

if UCSIS decided not to defer action on a case. See Ex.26(USCISHelpCenter,If USCIS does not

exercise deferred action in my case, will I be placed in removal proceedings?).

42. In the exceptional circumstance in which USCIS referred a DACA applicant to ICE,

USCIS affirmatively represented to DACA applicants that “information related to [their] family

members or guardians that is contained in [their] request [would] not be referred to ICE for

purposes of immigration enforcement against family members or guardians.” See Ex. 27 (USCIS

Help Center, If my DACA case is referred to ICE for immigration enforcement purposes or if I

receive an NTA, will information related to my family members and guardians also be referred to

ICE for immigration enforcement purposes?).

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43. USCIS affirmatively represented to employers of DACA applicants that, except in

limited circumstances, if they provided an employee "with information regarding his or her

employment to support a request for consideration of DACA,” the information would not be

“shared with ICE for civil immigration enforcement purposes.” See Ex.28(USCISHelpCenter,If

I provide my employee with information regarding his or her employment to support a request for

consideration of DACA, will that information be used for immigration enforcement purposes

against me and/or my company?).

44. The government’s representations that, absent exceptional circumstances,

information provided by a DACA grantee would not be used against him or her for later

immigration enforcement proceedings were unequivocal and atypical. For example, the federal

government does not make the same representations for participants in other similar programs,

such as Temporary Protected Status. These assurances were key to the success of the DACA

program. By making repeated, unique, and strong representations, the federal government induced

persons to rely on those representations and apply to become DACA grantees despite the potential

risks.

The Government’s Commitment to Continuity and Fair Treatment for DACA Grantees.

45. Numerous public officials from both political parties have reinforced the federal

government’s promise to provide continuity and fair treatment to DACA grantees, and have

recognized that DACA grantees have relied on the government’s representations in applying for

DACA. For example, in December 2016, then-Secretary of Homeland Security Jeh Charles

Johnson acknowledged that there are hundreds of thousands of DACA grantees who have “relied

on the U.S. government’s representations” about DACA, and asserted that “representations made

by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be

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honored.” See Ex. 15.

46. On December 19, 2016, then-President-elect Trump stated in an interview with

TIME magazine that he would find an accommodation for DACA grantees, stating, “We’re going

to work something out that’s going to make people happy and proud.” See Ex. 29 (Michael Scherer,

Person of the Year 2016,TIME Magazine, Dec. 19, 2016). He further recognized, “[DACA

grantees] got brought here at a very young age, they’ve worked here, they’ve gone to school here.

Some were good students. Some have wonderful jobs. And they’re in never-never land because

they don’t know what’s going to happen.” Id.

47. Again, on January 18, 2017, then President-elect Trump promised in an interview

with Fox & Friends that he was working on a plan to make DACA grantees “very happy.” See Ex.

30 (Francesca Chambers, Trump signals he’s softening on immigration as he says he’s ‘working

on a plan’ that will make DREAMers ‘very happy,’ Daily Mail, Jan. 18, 2017). He further stated,

“We’re working on a plan right now. And that plan, over the next two to three months, is going to

come out. And it’s a plan that’s going to be very firm, but it’s going to have a lot of heart.” Id.

48. In January 2017, Speaker of the House Paul Ryan stated that the government must

ensure that “the rug doesn’t get pulled out from under” DACA grantees, who have “organize[d]

[their] li[ves] around” the DACA program. See Ex. 31 (CNN, Transcript of CNN Town Hall with

Speaker Paul Ryan, Jan. 12, 2017).

49. On January 25, 2017, President Trump again stated in an interview with David Muir

that “[DACA grantees] shouldn’t be very worried. I do have a big heart.” See Ex. 32 (ABC News,

Transcript of ABC News anchor David Muir interview with Donald Trump, Jan. 25, 2017).

50. In February 2017, then-Secretary of DHS John Kelly issued a memorandum

relating to enforcement priorities. This memorandum terminated “all existing conflicting

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directives, memoranda, or field guidance regarding the enforcement of our immigration laws and

priorities for removal,” including prior enforcement priorities, but left DACA unchanged. See Ex.

2 (Memorandum from Secretary John Kelly to Keven McAleenan, Acting CBP Commissioner,

Enforcement of the Immigration Laws to Serve the National Interest, Feb. 20, 2017); see also Ex.

10 (Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior

of the United States, Feb. 21, 2017) (“Q22: Do these memoranda affect recipients of Deferred

Action for Childhood Arrivals (DACA)? A22: No.”).

51. On March 29, 2017, Secretary Kelly reaffirmed that “DACA status” is a

“commitment . . . by the government towards the DACA person, or the so-called Dreamer.” See

Ex. 33 (Ted Hesson & Seung Min Kim, Wary Democrats Look to Kelly for Answers on

Immigration, Politico, Mar. 29, 2017).

52. On April 21, 2017, President Trump represented that his Administration’s policy

was not to deport DACA grantees, and suggested that they “should rest easy.” See Ex. 34 (The

Associated Press, Interview Transcript, Apr. 21, 2017).

53. On June 15, 2017, Secretary Kelly issued a memo terminating the Deferred Action

for Parents of Americans and Lawful Permanent Residents (“DAPA”) program created in 2014,

but keeping DACA in place. See Ex. 23 (Memorandum from Secretary John Kelly to Keven

McAleenan, Acting CBP Commissioner, Rescission of November 20, 2014 Memorandum

Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents, June

15, 2017).

54. The government’s commitment to the DACA program was further communicated

to young people through DHS’s publication entitled “National Standard Operating Procedures

(SOP): Deferred Action for Childhood Arrivals (DACA)” (the “DACA SOP”). See Ex. 18. This

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document includes more than 150 pages of specific instructions for granting or denying deferred

action.

55. Moreover, the approval notice granting deferred action under DACA listed only

“fraud or misrepresentation” in the application process or “[s]ubsequent criminal activity” as

grounds for revoking DACA. See Ex. 24 (USCIS, DACA Approval Notice).

56. In reliance on these representations, hundreds of thousands of young people applied

to participate in the DACA program, or sought renewal of their benefits since 2017. See Ex. 1.

President Trump’s Statements about Mexicans.

57. Despite these various and repeated promises to DACA grantees made by the federal

government and by President Trump, including a recognition of DACA’s continued legal viability,

value, and successes, President Trump has a long history of disparaging Mexicans, who comprise

the vast majority of DACA grantees.

58. In announcing his presidential campaign, then-candidate Trump compared

Mexican immigrants to rapists, stating: “When Mexico sends its people, they’re not sending their

best. They’re not sending you. They’re sending people that have lots of problems, and they’re

bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists.

And some, I assume, are good people.” See Ex. 35 (Washington Post, Transcript of Donald

Trump’s Presidential Bid Announcement, June 16, 2015).

59. During the first Republican presidential debate, then-candidate Trump again stated

his distaste for immigrants from Mexico: “The Mexican government is much smarter, much

sharper, much more cunning. And they send the bad ones over because they don’t want to pay for

them. They don’t want to take care of them.” See Ex. 36 (Andrew O’Reilly, At GOP debate, Trump

says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News, Aug. 6, 2015).

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60. Soon after, on August 25, 2015, then-candidate Trump refused to answer questions

about immigration posed by Jorge Ramos, a Mexican-American and the top news anchor at

Univision, a Spanish-language news network. After sending his bodyguard to physically remove

Mr. Ramos, then-candidate Trump derisively told Mr. Ramos to “Go back to Univision.” See Ex.

37 (Phillip Rucker, First, Trump booted Univision anchor Jorge Ramos out of his news conference.

Then things got interesting, The Washington Post, Aug. 25, 2015).

61. In May 2016, then-candidate Trump referred to anti-Trump protestors who carried

the Mexican flag as “criminals” and “thugs.” See Ex. 38 (Donald Trump, “The protestors in New

Mexico were thugs who were flying the Mexican Flag,” Twitter, May 25, 2016); See Ex. 39

(Donald Trump, “Many of the thugs that attacked peaceful Trump supporters in San Jose were

illegals,” Twitter, June 4, 2016).

62. In June 2016, then-candidate Trump impugned the integrity of a federal judge

presiding over a lawsuit against one of his businesses because the judge is Hispanic. Trump

commented that Judge Gonzalo Curiel’s rulings against him “[H]as to do with perhaps that I’m

very, very strong on the border. . . Now, he is Hispanic, I believe. He is a very hostile judge to

me.” See Ex. 40 (Jose A. DelReal and Katie Zezima, Trump’s personal, racially tinged attacks on

federal judge alarm legal experts, The Washington Post, June 1, 2016).

63. In an interview with CBS News on June 5, 2016, then-candidate Trump again

reiterated his anti-Mexican views, noting that “[Judge Curiel]’s a member of a club or society very

strongly, pro-Mexican, which is all fine. But I say he’s got bias.” See Ex. 41 (CBS News,

Transcript of Face the Nation, June 5, 2016). Judge Curiel is a member of the San Diego Chapter

of the La Raza Lawyers Association. See Ex. 42 (Michelle Ye Hee Lee, Trump supporters’ false

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claim that Trump U judge is a member of a pro-immigrant group, The Washington Post, June 7,

2016).

64. On August 21, 2015, two men urinated on a sleeping Latino man and then beat him

with a metal pole. They later told police that “Donald Trump was right; all these illegals need to

be deported.” When asked about the incident, then-candidate Trump failed to condemn the men,

instead describing them as “passionate.” See Ex. 43 (Adrian Walker, ‘Passionate’ Trump fans

behind homeless man’s beating?, The Boston Globe, Aug. 21, 2015). Specifically, Trump stated,

“[i]t would be a shame . . . I will say that people who are following me are very passionate. They

love this country and they want this country to be great again. They are passionate. Id.

65. In October 2016, during a presidential debate, then-candidate Trump responded to

a question about immigration by stating: “We have some bad hombres here and we’re going to get

them out.” See Ex. 44 (Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the

United States, The Washington Post, Aug. 30, 2017).

66. On January 27, 2017, newly-inaugurated President Trump and Mexico’s President

Peña Nieto discussed President Trump’s proposal for a border wall over the phone. During that

transcribed conversation, President Trump again referred to “hombres” stating: “You have some

pretty tough hombres in Mexico that you may need help with, and we are willing to help you with

that big-league. But they have to be knocked out and you have not done a good job of knocking

them out.” See Ex. 45 (Greg Miller et. al., Full Transcripts of Trump’s Calls with Mexico and

Australia, The Washington Post, Aug. 3, 2017).

67. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff

Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal

judge’s order to stop racially profiling Latinos. See Ex. 46 (Julie Hirschfield Davis and Maggie

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Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration,

The N.Y. Times, Aug. 25, 2017).

68. Sheriff Arpaio had been detaining people ostensibly because they had violated the

law. But in practice, his office detained huge numbers of individuals solely because they looked

Latino, without any reasonable suspicion of illegal conduct. See generally Melendres v. Arpaio,

Findings of Fact & Conclusions of Law, 2:07-cv-02513-GMS, ECF Doc. No.579 (D. Az. May 24,

2013). After a federal court enjoined that practice in 2011, Arpaio continued his unlawful and

discriminatory practices unabated, “announc[ing] to the world and to his subordinates that he was

going to continue business as usual no matter who said otherwise.” United States v. Arpaio,

Findings of Fact & Conclusions of Law, 2:16-cr-01012-SRB, ECF Doc. No. 210 at 13 (D. Az. July

31, 2017). On July 31, 2017, a federal court held Arpaio in criminal contempt, holding that he had

willfully acted in “flagrant disregard” of the injunction. Id.

69. Before issuing the pardon, President Trump asked, “Was Sheriff Joe convicted for

doing his job?” See Ex. 46. (Davis and Haberman, Trump Pardons Joe Arpaio). After issuing the

pardon, President Trump sent a tweet calling Mr. Arpaio “an American patriot.” Id.

70. As President Trump’s statements about Mexico and those with Mexican origins

demonstrate, the President is willing to disparage Mexicans in a misguided attempt to secure

support from his constituency.

Trump Administration’s Threatening Statements about Deporting Immigrants. 71. On June 13, 2017, Acting ICE Director Thomas Homan testified in front of the

House Appropriations Committee's Subcommittee on Homeland Security, stating as to “every

immigrant in the country without papers,” that they “should be uncomfortable. You should look

over your shoulder. And you need to be worried.” Hearing on the ICE and CBP F.Y. 2018 Budget

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Before the Subcomm. on Homeland Security of the H. Comm. on Appropriations, 115th Cong.

(2017) 2017 WLNR 18737622.

72. On April 19, 2017, United States Attorney General Jefferson B. Sessions stated in

an interview on Fox News’ “Happening Now,” program—in response to a question regarding the

deportation of a DACA recipient—that “[e]verybody in the country illegally is subject to being

deported, so people come here and they stay here a few years and somehow they think they are not

subject to being deported -- well, they are. . . . we can’t promise people who are here unlawfully

that they aren’t going to be deported.” Ex. 49 (Adam Shaw, Sessions defends immigration policies

after reported ‘DREAMer’ deportation, Fox News, Apr. 19, 2017).

President Trump Terminates DACA in Response to the Litigation Threats of a State Found To Have Discriminated Against Latinos/Hispanics Nine Times Since 2012.

73. On June 29, 2017, the Attorneys General of ten states, led by the State of Texas,

sent U.S. Attorney General Sessions a letter threatening to add claims to litigation currently

pending in the Southern District of Texas “to challenge both the DACA program and the remaining

expanded DACA permits,” if the Executive Branch did not agree to end the DACA program by

September 5, 2017. Ex. 177 (Letter from Ken Paxton et.al. to Attorney General Jeff Sessions, June

29, 2017).

74. The demand that President Trump eliminate DACA is part of a history of

intentional discrimination against Latinos/Hispanics by the State of Texas.

75. Over the preceding decade, federal courts have repeatedly found the State of Texas

liable for engaging in unlawful discrimination based on race and/or national origin.

76. For example, in Texas v. United States, 887 F. Supp. 2d 133, 161 (D.D.C. 2012),

three federal judges blocked a Congressional and State House redistricting plan after finding that

it “was enacted with discriminatory purpose.”

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77. The litigation eventually culminated in a ruling by a three-judge panel on August

15, 2017 finding, again, that the 2010 congressional districts had been created with “racially

discriminatory intent” against Latinos and African American voters. Perez v. Abbott, SA-11-CV-

360, 2017 U.S. Dist. LEXIS 129982, at *55 (W.D. Tex. Aug. 15, 2017).

78. On October 9, 2014, in separate litigation challenging a state voter photo

identification (“ID”) law, a Texas federal district court judge found that the provision had been

“imposed with an unconstitutional discriminatory purpose” and “constitute[d] an unconstitutional

poll tax.” Veasey v. Perry, 71 F. Supp. 3d 627, 633 (S.D. Tex. 2014).

79. On remand from the Fifth Circuit, a federal district court concluded that the 2011

Legislature intentionally discriminated against minority voters by requiring presentation of a photo

ID when casting their ballots. Veasey v. Abbott, 2017 U.S. Dist. LEXIS 54253, at *14-18 (S.D.

Tex. Apr. 10, 2017).

80. DHS issued the DHS Memorandum terminating DACA on September 5, 2017, in

direct response to the threats of the State of Texas and the other ten states, fulfilling the demand

of a State marked with a history of racial and national origin discrimination.

President Trump Backtracks on His Promise and Terminates DACA.

81. Attorney General Sessions announced the termination of DACA via a live press

conference. He explained, without evidence, “The effect of this unilateral executive amnesty,

among other things, contributed to a surge of unaccompanied minors on the southern border that

yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of

Americans by allowing those same jobs to go to illegal aliens.” See Ex. 75 (DOJ, Attorney General

Sessions Delivers Remarks on DACA, Prepared Remarks, Sept. 5, 2017).

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82. Under the DHS Memorandum, which accompanied this announcement, the

government’s new policy provides no discretion to approve new applications on a case-by-case

basis. Instead, the DHS Memorandum is a final decision that an entire class of people is no longer

eligible for deferred action, employment authorization, and other benefits. Per the DHS

Memorandum, DHS “[w]ill reject all DACA initial requests and associated applications for

Employment Authorization Documents filed after the date of this memorandum.” DHS will also

reject all renewal applications it receives after October 5, 2017, and all renewal applications for

authorizations that expire after March 5, 2018. See Ex. 74 (DHS Memorandum).

83. In issuing the DHS Memorandum, the federal government misleadingly claimed

that DACA was unconstitutional, see Ex. 74, despite the fact that no court has made that

determination, and despite previous determinations by DOJ and DHS, including under the Trump

administration, that DACA is lawful and should be left in place. In fact, as recently as June 15,

2017, then-Secretary of Homeland Security John Kelly chose to allow DACA to continue (while

terminating the DAPA program) “after consulting with the Attorney General.” See Ex. 23

84. Even after the announcement, the government’s position on the reasoning for the

termination has been unclear and inconsistent. On the day of the termination, President Trump re-

tweeted a statement that “We are a nation of laws. No longer will we incentivize illegal

immigration.” See Ex. 47 (Josh Saul, Jeff Sessions Always Wanted to Deport Undocumented

Immigrant Youth. Now He Can, Newsweek, Sept. 5, 2017). The President appears to have deleted

this tweet. Later on September 5, the President tweeted, “Congress now has 6 months to legalize

DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this

issue!” See Ex. 48 (Donald J. Trump, Twitter, Sept. 5, 2017). On September 14, 2017, he tweeted,

“Does anybody really want to throw out good, educated and accomplished young people who have

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jobs, some serving in the military? Really! .....” See Ex. 50 (Donald J. Trump, Twitter, Sept. 14,

2017).

85. As a result of the DHS Memorandum, DACA grantees whose benefits expire after

March 5, 2018 will immediately lose their employment authorization, as well as other vital

benefits, such as social security cards, driver’s licenses, financial aid, disability and health benefits,

among others.

86. They also may lose their homes and communities if the program is allowed to

expire. An internal White House memo reported on by CNN stated that DHS now is urging DACA

grantees “to prepare for and arrange their departure from the United States” when their DACA

terms end. See Ex. 88 (Tal Kopan & Jim Acosta, Admin Memo: DACA recipients should prepare

for departure from the United States, CNN, Sept. 5, 2017). This threat of deportation is consistent

with past references to deportation of DACA grantees, such as a statement by Attorney General

Sessions in response to a question regarding the deportation of a DACA grantee that “[e]verybody

in the country illegally is subject to being deported, so people come here and they stay here a few

years and somehow they think they are not subject to being deported -- well, they are. . . . we can’t

promise people who are here unlawfully that they aren’t going to be deported.” See Ex. 49 (Adam

Shaw, Sessions defends immigration policies after reported ‘DREAMer’ deportation, Fox News,

Apr. 19, 2017).

87. President Trump also has taken affirmative steps to reduce the privacy protections

applicable to DACA grantee information. In January 2017, President Trump issued an Executive

Order directing all agencies, including DHS, to “ensure that their privacy policies exclude persons

who are not United States citizens or lawful permanent residents from the protections of the

Privacy Act regarding personally identifiable information.” See Ex. 76 (Executive Order 13768,

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“Enhancing Public Safety in the Interior of the United States,” Jan. 25, 2017). In response to the

Executive Order, DHS adopted a privacy policy that “permits the sharing of information about

immigrants and non-immigrants with federal, state, and local law enforcement.” See Ex. 51 (DHS,

88. The DHS Memorandum provides no assurance to DACA grantees, or direction to

USCIS and ICE, that information contained in DACA applications cannot be used for the purpose

of future immigration enforcement proceedings.

89. To the contrary, on the same day that the DHS Memorandum was issued, DHS

changed its public guidance about the use of DACA application data for immigration enforcement.

DHS removed the webpage containing the assurance that, absent exceptional circumstances,

DACA application data “is protected from disclosure to ICE and CBP for the purpose of

immigration enforcement proceedings.” Cf. Ex. 25 (containing link to USCIS webpage that now

contains an error alert and a message stating, “The page you are looking for may not exist or is

temporarily unavailable.”). The same day, DHS posted a new policy governing the use of

information provided by DACA applicants. DHS now states that USCIS “[g]enerally” will not

“proactively provid[e] information obtained through DACA to ICE and CBP. See Ex. 89 (DHS,

Frequently Asked Questions: Rescission of Deferred Action for Childhood Arrivals, Sept. 5, 2017).

The new policy imposes no restrictions on USCIS providing DACA data at the request of ICE,

CBP, or any other law enforcement entity. Id. DHS also reserves the right to change its new policy

“at any time without notice” and states that the policy “may not be relied upon” by any party. Id.

90. DACA grantees thus immediately face the risk that information they provided to

the federal government could be used against them at any time, without notice, for purposes of

immigration enforcement, including detention or removal.

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The Defendants’ Failure to Notify Certain DACA Grantees of the October 5, 2017 Renewal Deadline.

91. Before the termination of DACA, Defendants had a written policy and practice

allowing DACA grantees to submit their renewal application up to one year after the date of

expiration of their participation in DACA. If DACA grantees failed to renew within one year of

the expiration date, they had the option to re-apply as initial applicants. See Ex. 14 (USCIS FAQs

– Q50).

92. In addition, USCIS and DHS had a long-standing practice of using the address

information they maintain for DACA grantees to send individualized notices to those grantees

regarding their renewal expiration dates. See Ex. 178 (DACA Renewal Notice).

93. On information and belief, no standard renewal notices have been provided to

DACA grantees whose participation in DACA expires between February 6, 2018 and March 5,

2018. Prior to termination of DACA, a DACA grantee whose renewal status expires in February

2018 would have received an individualized renewal notice informing the grantee that he or she

had to file a renewal 120-150 days prior to expiration, i.e., by November 2017, in order to avoid a

lapse in deferred action and employment authorization. See, e.g., id. However, since the

termination, Defendants have not yet sent this group of DACA grantees any notices regarding

when and how they can renew.

94. On information and belief, the government sent standard renewal notices up until

August 1, 2017 for DACA grantees whose participation in DACA expires by January 2018,

informing the grantees they had the standard 120-150 days prior to the expiration date to renew if

they wished to “avoid a lapse in [their] period of deferred action and employment authorization”.

See, e.g., id. However, in light of DHS’s decision to impose an absolute cut-off date of October 5,

2017 for all renewal applications, the information conveyed in these notices is now incorrect. The

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notices misleadingly suggest to DACA grantees that they have several additional months beyond

October 5 to renew their DACA status without a gap in employment authorization. Moreover, the

faulty renewal notices were not followed with individualized corrected notices informing this

group of grantees that there is a new, absolute October 5 deadline for renewal, and that DACA

grantees will no longer have up to one year after the date of expiration of their DACA to submit a

renewal application.

95. As a result of Defendants’ failure to provide individualized notice regarding the

new October 5, 2017 renewal deadline to DACA grantees whose participation expires before

March 5, 2018, individuals who received no notice or incorrect notice of the new deadline may be

forever ineligible to renew their participation in DACA. These DACA grantees will no longer be

protected from deportation and will lose work authorization that they may have otherwise had.

They may also lose health insurance, social security cards, driver’s licenses and other benefits.

96. On October 3, 2017, DHS issued a press release stating that “[o]f the approximately

154,200 individuals whose DACA is set to expire between Sept. 5, 2017, and March 5, 2018, just

over 106,000 either have renewal requests currently pending with USCIS, or have already had

USCIS adjudicate their renewal request.” See Ex. 82 (DHS Press Release Department of

Homeland Security Acting Secretary Elaine Duke Reminds Eligible DACA Recipients to File

Renewal Requests, October 3, 2017). Therefore, up to one third of DACA grantees who are eligible

for renewal had not applied as of two days before the October 5, 2017 deadline.

The Government’s Failure to Notify DACA Grantees of their Inability to Renew Their DACA Status If It Expires After March 5, 2018. 97. On information and belief, Defendants’ termination of DACA was solely

communicated to DACA grantees through the publication of DHS’s memorandum on September

5, 2017 on the DHS website and by a concurrent television announcement from Attorney General

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Sessions. See Ex. 74 (DHS Memo); See Ex. 75 (Attorney General Sessions Delivers Remarks on

DACA).

98. On information and belief, the government did not and does not plan to issue

individualized notices to any DACA grantees informing them of the termination of DACA and

their inability to renew if their DACA status expires after March 5, 2018.

99. Many DACA grantees relied upon their ability to apply to renew DACA in making

important decisions related to their employment, education and families, among other things.

HARM TO PLAINTIFF STATES

100. The States will suffer harm as a result of the termination of the DACA program,

including immediate and irreparable injuries to their sovereign, quasi-sovereign, and proprietary

interests.

PLAINTIFF STATE OF NEW YORK

101. The State of New York is home to an estimated 76,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

102. As of June 30, 2017, USCIS had approved 42,503 initial DACA applications and

62,850 renewals for residents of New York. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 63 (Decl.

Wong).

103. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of New York, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, and obtain employer-based health insurance, among other benefits.

104. An estimated 38,848 New York DACA grantees are employed. See Ex. 5 ¶ 64

(Decl. Wong). An estimated 2,295 are business owners. Id. An estimated 19,084 are in school, and

13,645 are currently pursuing a bachelor’s degree or higher. Id. ¶ 65.

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105. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the New York economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $140 million

annually in state and local taxes in New York—a contribution that may drop by $55 million

without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that

terminating DACA would, over a ten-year period, impact the New York economy with $10.7

billion in budgetary costs and $38.6 billion economic costs. See Ex. 4, Table 1 (Decl. Brannon).

PLAINTIFF COMMONWEALTH OF MASSACHUSETTS

106. The Commonwealth of Massachusetts is home to an estimated 19,000 or more

DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

107. As of June 30, 2017, USCIS had approved 8,053 initial DACA applications and

12,857 renewals for residents of Massachusetts. See Ex.1(UpdatedUSCISData);Ex.5¶55

(Decl. Wong).

108. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Massachusetts, to work legally, acquire driver’s licenses, open bank accounts,

access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and

obtain employer-based health insurance, among other benefits.

109. An estimated 7,360 Massachusetts DACA grantees are employed. See Ex.5¶56

(Decl. Wong). An estimated 435 are business owners. Id. An estimated 3,616 are in school, and

2,585 currently are pursuing a bachelor’s degree or higher. Id. ¶ 57.

110. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Massachusetts economy generally. Stripping DACA grantees of the ability to work

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legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the

State. According to one estimate, DACA-eligible residents contribute approximately $24.2

million annually in state and local taxes in Massachusetts—a contribution that may drop by $9.2

million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests

that terminating DACA would, over a ten-year period, impact the Massachusetts economy with

$258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl.

Brannon).

PLAINTIFF STATE OF WASHINGTON

111. The State of Washington is home to an estimated 27,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

112. As of June 30, 2017, USCIS had approved 17,937 initial DACA applications and

17,906 renewals for residents of Washington. See Ex.1(UpdatedUSCISData);Ex.5¶87(Decl.

Wong).

113. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Washington, to work legally, acquire driver’s licenses, open bank accounts,

access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and

obtain employer-based health insurance, among other benefits.

114. An estimated 16,394 Washington DACA grantees are employed. See Ex.5¶88

(Decl. Wong). An estimated 969 are business owners. Id. An estimated 8,054 are in school, and

5,758 currently are pursuing a bachelor’s degree or higher. Id. ¶ 89.

115. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Washington economy generally. Stripping DACA grantees of the ability to work

legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the

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State. According to one estimate, DACA-eligible residents contribute approximately $51 million

annually in state and local taxes in Washington—a contribution that may drop by $19 million

without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that

terminating DACA would, over a ten-year period, impact the Washington economy with $1.8

billion in budgetary costs and $6.4 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).

PLAINTIFF STATE OF COLORADO

116. The State of Colorado is home to an estimated 23,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

117. As of June 30, 2017, USCIS had approved 17,310 initial DACA applications and

15,322 renewals for residents of Colorado. See Ex.1(UpdatedUSCISData);Ex.5¶27(Decl.

Wong).

118. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Colorado, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, and obtain employer-based health insurance, among other benefits.

119. An estimated 15,281 Colorado DACA grantees are employed. See Ex.5¶28(Decl.

Wong). An estimated 935 are business owners. Id. An estimated 7,772 are in school, and 5,557

currently are pursuing a bachelor’s degree or higher. Id. ¶ 29.

120. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Colorado economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $33.9 million

annually in state and local taxes in Colorado—a contribution that may drop by $16.4 million

without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that

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terminating DACA would, over a ten-year period, impact the Colorado economy with $768 million

in budgetary costs and $2.7 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).

PLAINTIFF STATE OF CONNECTICUT

121. The State of Connecticut is home to an estimated 11,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

122. As of June 30, 2017, USCIS had approved 4,989 initial DACA applications and

6,764 renewals for residents of Connecticut. See Ex.1(UpdatedUSCISData);Ex.5¶31(Decl.

Wong).

123. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Connecticut, to work legally, acquire driver’s licenses, open bank accounts,

access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and

obtain employer-based health insurance, among other benefits.

124. An estimated 4,560 Connecticut DACA grantees are employed. See Ex.5¶32

(Decl. Wong). An estimated 269 are business owners. Id. An estimated 2,240 are in school, and

1,602 currently are pursuing a bachelor’s degree or higher. Id. ¶ 33.

125. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Connecticut economy generally. Stripping DACA grantees of the ability to work

legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the

State. According to one estimate, DACA-eligible residents contribute approximately $17 million

annually in state and local taxes in Connecticut—a contribution that may drop by $5 million

without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that

terminating DACA would, over a ten-year period, impact the Connecticut economy with $642

million in budgetary costs and $2.3 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).

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PLAINTIFF STATE OF DELAWARE

126. The State of Delaware is home to an estimated 3,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

127. As of June 30, 2017, USCIS had approved 1,451 initial DACA applications and

1,583 renewals for residents of Delaware. See Ex.1(UpdatedUSCISData);Ex.5¶35(Decl.

Wong).

128. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Delaware, to work legally, acquire driver’s licenses, open bank accounts, access

lines of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain

employer-based health insurance, among other benefits.

129. An estimated 1,326 Delaware DACA grantees are employed. See Ex.5¶36(Decl.

Wong). An estimated 651 are in school, and 466 currently are pursuing a bachelor’s degree or

higher. Id. ¶ 37.

130. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Delaware economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $2.4 million

annually in state and local taxes in Delaware—a contribution that may drop by $1 million without

DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating

DACA would, over a ten-year period, impact the Delaware economy with $258 million in

budgetary costs and $924 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon).

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PLAINTIFF THE DISTRICT OF COLUMBIA

131. The District of Columbia (“District”) is home to an estimated 2,000 or more

DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

132. As of June 30, 2017, USCIS had approved 773 initial DACA applications and 1,299

renewals for residents of the District. See Ex.1(UpdatedUSCISData);Ex.5¶39(Decl.Wong).

133. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of the District, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, receive in-state tuition at public universities, and obtain employer-based health

insurance, among other benefits.

134. An estimated 707 District DACA grantees are employed. See Ex.5¶40(Decl.

Wong). An estimated 347 are in school, and 248 currently are pursuing a bachelor’s degree or

higher. Id. ¶ 41.

135. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the District’s economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $2.7 million

annually in state and local taxes in the District—a contribution that may drop by $946,000 without

DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating

DACA would, over a ten-year period, impact the District’s economy $900 million in budgetary

costs and $3.2 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).

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PLAINTIFF STATE OF HAWAII

136. The State of Hawaii is home to an estimated 2,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

137. As of June 30, 2017, USCIS had approved 582 initial DACA applications and 2,179

renewals for residents of Hawaii. See Ex.1(UpdatedUSCISData);Ex.5¶43(Decl.Wong).

138. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Hawaii, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, receive in-state tuition at public universities, and obtain employer-based health

insurance, among other benefits.

139. An estimated 532 Hawaii DACA grantees are employed. See Ex.5¶44(Decl.

Wong). An estimated 261 are in school, and 187 currently are pursuing a bachelor’s degree or

higher. Id. ¶ 45.

140. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Hawaii economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in a loss of tax revenue for the

State. According to one estimate, DACA-eligible residents contribute approximately $3.2 million

annually in state and local taxes in Hawaii—a contribution that may drop by $870,000 without

DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating

DACA would, over a ten-year period, impact the Hawaii economy $126 million in budgetary costs

and $451.5 million economic costs. See Ex. 4, Table 1 (Decl. Brannon).

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PLAINTIFF STATE OF ILLINOIS

141. The State of Illinois is home to an estimated 68,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

142. As of June 30, 2017, USCIS had approved 42,537 initial DACA applications and

39,702 renewals for residents of Illinois. See Ex.1(UpdatedUSCISData);Ex.5¶47(Decl.

Wong).

143. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Illinois, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, receive in-state tuition at public universities, and obtain employer-based health

insurance, among other benefits.

144. An estimated 38,879 Illinois DACA grantees are employed. See Ex.5¶48(Decl.

Wong). An estimated 2,297 are business owners. Id. An estimated 19,099 are in school, and

13,656 currently are pursuing a bachelor’s degree or higher. Id. ¶ 49.

145. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Illinois economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $131 million

annually in state and local taxes in Illinois—a contribution that may drop by $54.7 million without

DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating

DACA would, over a ten-year period, cost the Illinois economy $1.9 billion in lost tax revenue

and $6.9 billion overall. See Ex. 4, Table 1 (Decl. Brannon).

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PLAINTIFF STATE OF IOWA

146. The State of Iowa is home to an estimated 4,000 or more DACA-eligible residents.

See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

147. As of June 30, 2017, USCIS had approved 2,812 initial DACA applications and

3,120 renewals for residents of Iowa. See Ex.1(UpdatedUSCISData);Ex.5¶51(Decl.Wong).

148. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Iowa, to work legally, acquire driver’s licenses, open bank accounts, access lines

of credit, purchase homes and cars, receive in-state tuition at public universities, and obtain

employer-based health insurance, among other benefits.

149. An estimated 2,570 Iowa DACA grantees are employed. See Ex.5¶52(Decl.

Wong). An estimated 152 are business owners. Id. An estimated 1,263 are in school, and 903

currently are pursuing a bachelor’s degree or higher. Id. ¶ 53.

150. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Iowa economy generally. Stripping DACA grantees of the ability to work legally will

cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $6.8 million

annually in state and local taxes in Iowa—a contribution that may drop by $3.2 million without

DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating

DACA would, over a ten-year period, impact the Iowa economy with $258 million in budgetary

costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl. Brannon). Yet another

estimate predicts that the state’s GDP would contract by $55.83 million if DACA is terminated.

See Ex. 85 ¶ 9 (Decl. Swenson, Iowa St. University).

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PLAINTIFF STATE OF NEW MEXICO

151. The State of New Mexico is home to an estimated 10,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

152. As of June 30, 2017, USCIS had approved 6,838 initial DACA applications and

5,622 renewals for residents of New Mexico. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 59 (Decl.

Wong).

153. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of New Mexico, to work legally, acquire driver’s licenses, open bank accounts,

access lines of credit, purchase homes and cars, receive in-state tuition at public universities, and

obtain employer-based health insurance, among other benefits. An estimated 6,250 New Mexico

DACA grantees are employed. See Ex. 5 ¶ 60 (Decl. Wong). An estimated 369 are business

owners. Id. An estimated 3,070 are in school, and 2,195 currently are pursuing a bachelor’s degree

or higher. Id. ¶ 61.In addition to the many harms identified below, see ¶¶ 188-233, terminating

DACA will hurt the New Mexico economy generally. Stripping DACA grantees of the ability to

work legally will cause many to lose their jobs, resulting, among other things, in less tax revenue

for the State. According to one estimate, DACA-eligible residents contribute approximately $18.8

million annually in state and local taxes in New Mexico—a contribution that may drop by $7.5

million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests

that terminating DACA would, over a ten-year period, impact the New Mexico economy with

$258 million in budget costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl.

Brannon).

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PLAINTIFF STATE OF NORTH CAROLINA

154. The State of North Carolina is home to an estimated 41,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

155. As of June 30, 2017, USCIS had approved 27,455 initial DACA applications and

23,619 renewals for residents of North Carolina. See Ex. 1 (Updated USCIS Data); Ex. 5 ¶ 67

(Decl. Wong).

156. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of North Carolina, to work legally, open bank accounts, access lines of credit,

purchase homes and cars, and obtain employer-based health insurance, among other benefits.

157. An estimated 24,094 North Carolina DACA grantees are employed. See Ex.5¶68

(Decl. Wong). An estimated 1,483 are business owners. Id. An estimated 12,327 are in school,

and 8,814 currently are pursuing a bachelor’s degree or higher. Id. ¶ 69.

158. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the North Carolina economy generally. Stripping DACA grantees of the ability to work

legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the

State. According to one estimate, DACA-eligible residents contribute approximately $63.6

million annually in state and local taxes in North Carolina—a contribution that may drop by $29

million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests

that terminating DACA would, over a ten-year period, impact the North Carolina economy with

$2.1 billion in budgetary costs and $7.8 billion in economic costs. See Ex. 4, Table 1 (Decl.

Brannon).

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PLAINTIFF STATE OF OREGON

159. The State of Oregon is home to an estimated 15,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

160. As of June 30, 2017, USCIS had approved 11,321 initial DACA applications and

10,275 renewals for residents of Oregon. See Ex.1(UpdatedUSCISData);Ex.5¶71(Decl.

Wong).

161. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Oregon, to work legally, acquire driver’s licenses, open bank accounts, access

lines of credit, purchase homes and cars, have more ready access to in-state tuition, and obtain

employer-based health insurance, among other benefits.

162. An estimated 10,347 Oregon DACA grantees are employed. See Ex. 5 ¶ 72 (Decl.

Wong). An estimated 611 are business owners. Id. An estimated 5,083 are in school, and 3,634

currently are pursuing a bachelor’s degree or higher. Id. ¶ 73.

163. The State of Oregon’s revenue structure relies heavily on income taxes, including

capital gains for investors, wages paid to workers, and corporate taxes that are directly linked to

profitability. See Ex. 126 ¶ 9 (Decl. Read).

164. Eliminating DACA grantee Oregonians’ ability to work legally will cause many to

lose their jobs, resulting, among other things, in less tax revenue for the state and impairment of

the state’s economic health. See, e.g., Ex. 100 ¶ 6 (Decl. Nicolas). According to one estimate,

DACA-eligible residents contribute approximately $20 million annually in state and local taxes in

Oregon—a contribution that may drop by $11 million without DACA. See Ex.3¶7(Decl.Essig,

Wiehe and Hill). Another estimate suggests that terminating DACA would, over a ten-year period,

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impact the Oregon economy with $384 million in budgetary costs and $1.3 billion in economic

costs. See Ex. 4, Table 1 (Decl. Brannon).

165. In addition, the inability to work legally and enjoy the other benefits of legal status

such as better access to credit and the banking system will make it more difficult, if not impossible,

for DACA grantee Oregonians to start businesses that contribute to the State’s economy and

overall financial health. See Ex. 126 ¶ 12 (Decl. Read).

166. In addition to the direct benefits to state programs of increased state revenues, the

State is also an investor and a borrower. See Ex. 126 ¶¶ 5-9 (Decl. Read). The State’s credit rating,

cost of borrowing, and the performance of the State’s investments are all tied to the overall

economic health of the State. See Ex. 126 ¶ 9 (Decl. Read). A reduced state tax base, and potential

downward pressure on corporate performance, has the potential to adversely affect these interests

as well. Many of the companies in which Oregon and Oregonians have holdings have expressed

concern that the rescission of the DACA program is a threat and will be disruptive to their

employees, their productivity, and their competitiveness. Any such disruption or downward

pressure on corporate profits also potentially affects Oregon as a taxing entity and a shareholder.

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PLAINTIFF COMMONWEALTH OF PENNSYLVANIA

167. The Commonwealth of Pennsylvania is home to an estimated 15,000 or more

DACA-eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

168. As of June 30, 2017, USCIS had approved 5,982 initial DACA applications and

9,875 renewals for residents of Pennsylvania. See Ex.1(UpdatedUSCISData);Ex.5¶75(Decl.

Wong).

169. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Pennsylvania, to work legally, open bank accounts, access lines of credit,

purchase homes and cars, and obtain employer-based health insurance, among other benefits.

170. An estimated 5,468 Pennsylvania DACA grantees are employed. See Ex.5¶76

(Decl. Wong). An estimated 323 are business owners. Id. An estimated 2,686 are in school, and

1,920 currently are pursuing a bachelor’s degree or higher. Id. ¶ 77.

171. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Pennsylvania economy generally. Stripping DACA grantees of the ability to work

legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the

State. According to one estimate, DACA-eligible residents contribute approximately $20.7

million annually in state and local taxes in Pennsylvania—a contribution that may drop by $7.5

million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests

that terminating DACA would, over a ten-year period, impact the Pennsylvania economy with

$258 million in budgetary costs and $924.5 million in economic costs. See Ex. 4, Table 1 (Decl.

Brannon).

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PLAINTIFF STATE OF RHODE ISLAND

172. The State of Rhode Island is home to an estimated 3,000 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

173. As of June 30, 2017, USCIS had approved 1,248 initial DACA applications and

2,019 renewals for residents of Rhode Island. See Ex.1(UpdatedUSCISData);Ex.5¶79(Decl.

Wong).

174. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Rhode Island, to work legally, open bank accounts, access lines of credit,

purchase homes and cars, and obtain employer-based health insurance, among other benefits.

175. An estimated 1,141 Rhode Island DACA grantees are employed. See Ex. 5 ¶ 80

(Decl. Wong). An estimated 560 are in school, and 401 currently are pursuing a bachelor’s degree

or higher. Id. ¶ 81.

176. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Rhode Island economy generally. Stripping DACA grantees of the ability to work

legally will cause many to lose their jobs, resulting, among other things, in less tax revenue for the

State. The Rhode Island Office of Management and Budget (“RIOMB”) estimates that the

termination of DACA could lead to over $1 million in lost state and local income, real estate and

vehicle taxes. See Ex. 128 ¶ 3 (Decl. Womer, RIOMB). According to one estimate, DACA-eligible

residents contribute approximately $3.8 million annually in state and local taxes in Rhode Island—

a contribution that may drop by $1.2 million without DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe

and Hill). According to the Institute on Taxation and Economic Policy (“ITEP”), the State of

Rhode Island alone will lose $2.6 million in state and local taxes if DACA protections are lost. See

Ex. 54. (Misha Hill and Meg Wiehe, State and Local Contributions of Young Undocumented

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Immigrants, Institute on Taxation and Economic Policy, April 25, 2017). According to the Center

for American Progress, Rhode Island will lose over $61 million in annual GDP loss from removing

DACA workers. See id.

PLAINTIFF STATE OF VERMONT

177. The State of Vermont is home to an estimated 100 or more DACA-eligible

residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

178. As of June 30, 2017, USCIS had approved 44 initial DACA applications and 199

renewals for residents of Vermont. See Ex. 1 (Updated USCIS Data).

179. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Vermont, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, and obtain employer-based health insurance, among other benefits.

180. An estimated 37 DACA grantees are employed in Vermont. See Ex. 53 (Nicole

Prchal Svajlenka, et. al., A New Threat to DACA Could Cost States Billions of Dollars, Center

for American Progress, July, 21, 2017).

181. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Vermont economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $140,000 annually

in state and local taxes in Vermont—a contribution that may drop by $48,000 without DACA. See

Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating DACA would,

over a ten-year period, cost the Vermont economy $2.4 million in Gross Domestic Product. See

Ex. 53 (Prchal Svajlenka, et. al., A New Threat to DACA).

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PLAINTIFF COMMONWEALTH OF VIRGINIA

182. The Commonwealth of Virginia is home to an estimated 30,000 or more DACA-

eligible residents. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill).

183. As of June 30, 2017, USCIS had approved 12,248 initial DACA applications and

15,296 renewals for residents of Virginia. See Ex.1(UpdatedUSCISData);Ex.5¶83(Decl.

Wong).

184. Obtaining DACA status has allowed these individuals, many of whom are long-

term residents of Virginia, to work legally, open bank accounts, access lines of credit, purchase

homes and cars, receive in-state tuition at public universities, and obtain employer-based health

insurance, among other benefits.

185. An estimated 11,195 Virginia DACA grantees are employed. See Ex.5¶84(Decl.

Wong). An estimated 661 are business owners. Id. An estimated 5,499 are in school, and 3,932

currently are pursuing a bachelor’s degree or higher. Id. ¶ 85.

186. In addition to the many harms identified below, see ¶¶ 188-233, terminating DACA

will hurt the Virginia economy generally. Stripping DACA grantees of the ability to work legally

will cause many to lose their jobs, resulting, among other things, in less tax revenue for the State.

According to one estimate, DACA-eligible residents contribute approximately $34.7 million

annually in state and local taxes in Virginia—a contribution that may drop by $12.7 million without

DACA. See Ex. 3 ¶ 7 (Decl. Essig, Wiehe and Hill). Another estimate suggests that terminating

DACA would, over a ten-year period, impact the Virginia economy with $1 billion in budgetary

costs and $3.6 billion in economic costs. See Ex. 4, Table 1 (Decl. Brannon).

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HARM TO PLAINTIFF STATES BY CATEGORY

Diversity, Inclusion, and Constitutional Values.

187. The States have an interest in prohibiting the deprivation of life, liberty or property

without due process, and in preventing any practice that denies equal protection of the laws or

otherwise discriminates on the basis of race, color, or national origin. For example:

a. New York’s Constitution guarantees all persons the right to equal treatment under

the law and forbids discrimination based on race, color, creed or religion. N.Y.

Const. art. I, § 11. And New York’s statutes reiterate the State’s strong interest in

combatting discrimination and prejudice. See N.Y. Exec. Law § 290.

b. Washington has declared that practices that discriminate against any of its

inhabitants because of race, color, or national origin are matters of public concern

that threaten the rights and proper privileges of the State and harm the public

welfare, health, and peace of the people. See Wash. Rev. Code 49.60.010.

c. Colorado welcomes people of all backgrounds. Colorado law prohibits unlawful

discrimination against people based on, among other things, race, national origin,

and ancestry. See C.R.S. § 24-34-601; C.R.S. § 24-34-402; C.R.S. § 24-34-502.

d. The Illinois Human Rights Act, 775 ILCS 5/1 et seq., establishes a public policy

“to secure for all individuals within Illinois the freedom from discrimination against

any individual because of his or her … national origin.” See 775 ILCS 5/1-102(A).

It further establishes a public policy “to prevent discrimination based on citizenship

status in employment.” See 775 ILCS 5/1-102(C).

e. The Council of the District of Columbia enacted the District’s Human Rights Act

“to secure an end in the District of Columbia to discrimination for any reason other

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than that of individual merit,” including discrimination based on national origin.

See D.C. Code Ann. § 2-1401.01. The District’s Human Rights Act prohibits

discrimination in a broad range of areas including employment, education, places

of public accommodation, public services, housing and commercial space

accommodations, the sale of motor vehicle insurance and the rental of motor

vehicles.

f. Through a long tradition of including and incorporating foreign-born persons into

its institutions, businesses, and governments, New Mexico has become one of the

most socially and politically diverse states. New Mexico enshrined in its state

constitution three provisions protecting the Spanish language and those who speak

it. See N.M. Const. art. VII, § 3 (stating that “[t]he right of any citizen of the state

to vote, hold office or sit upon juries shall never be restricted, abridged or impaired

on account of . . . language . . . or inability to speak, read or write the English or

Spanish languages except as otherwise provided in this constitution”); N.M. Const.

art. XII, § 8 (requiring teachers to become proficient in English and Spanish); and

N.M. Const. art. XII. § 10 (guaranteeing that “[c]hildren of Spanish descent in the

state of New Mexico shall never be denied the right and privilege of admission and

attendance in the public schools or other public educational institutions of the state,

and they shall never be classed in separate schools, but shall forever enjoy perfect

equality with other children in all public schools and educational institutions of the

state”).

g. Oregon has codified its state policy that practices of unlawful discrimination against

any of its inhabitants because of religion or national origin are “a matter of state

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concern,” and that such discrimination “menaces the institutions and foundation of

a free democratic state.” See ORS § 659A.006.

h. Pennsylvania’s laws reflect its commitment to values of diversity, multiculturalism

and openness to others of different races and nationalities. For example,

Pennsylvania’s Human Relations Act recognizes that an individual’s opportunity

to obtain employment, public accommodation, housing accommodation and

commercial property without discrimination on the basis of “race, color, familial

status … ancestry [and] national origin” is a “civil right” that is “enforceable” under

Pennsylvania law. See 43 P.S. § 953. See also 43 P.S. § 955.

i. In keeping with its history of freedom of conscience, equality and tolerance, Rhode

Island has prohibited practices that discriminate against any of its inhabitants

because of race, color, or national origin. See R.I. Constitution Article 1, section 2;

R.I. Gen. Laws 12-19-38 (Hate Crimes Sentencing Act); R.I. Gen. Laws § 42-112-

1 (The Civil Rights Act of 1990); R.I. Gen. Laws 28-5-1 (Fair Employment

Practices Act); R.I. Gen. Laws 34-37-1 (Fair Housing Practices Act).

188. The States also have an interest in ensuring that their residents are not excluded

from the benefits that flow from participation in the federal system, including the rights and

privileges provided by the U.S. Constitution and federal law.

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Harm to States as Employers.

189. The States have an interest in maintaining qualified, trained workforces.

190. Terminating DACA will cause the States to lose qualified State employees. Many

DACA recipients work in government or at state-run institutions, and they were hired because of

their specialized skills and qualifications. The States expended time and funds to hire, train, and

manage DACA recipients. If these individuals become ineligible to work, the States will lose the

value of their investment and the services of employees who perform important functions for the

States. They will also incur the costs associated with the need to recruit, hire, and train

replacements. See, e.g., Ex. 52 ¶ 8 (Decl. Mostofi, NYC Mayor’s Office of Immigrant Affairs);

Ex. 56 ¶¶ 2-4 (Decl. Quinonez); Ex. 70 ¶ 6 (Decl. I.V.); Ex. 61 ¶ 10 (Decl. Heatwole, UMass); Ex.

62 ¶ 3 (Decl. Monroe, Wash. Dept. of Ecology); Ex. 65 ¶ 3 (Decl. Kaplan, WA Dept. of Social

and Health Svcs.); Ex. 92 ¶ 3 (Decl. Jones, Wash. Treasury); Ex. 91 ¶ 3 (Decl. Garza, Big Bend

Community College); Ex. 64 ¶ 3 (Decl. Glatt, Columbia Basin College); Ex. 58 ¶ 4 (Decl. Loera,

Wash. State Univ.); Ex. 130 ¶ 3 (Decl. Conly, WA Dept. of Veterans Affairs); Ex. 113 ¶ 3 (Decl.

Schuh, City of Anacortes, WA); Ex. 157 ¶ 9-10 (Decl. Ridder, Portland State Univ.); Ex. 154 ¶ 11

(Decl. Cuprill-Comas, Oregon Health and Science Univ.); Ex. 153 ¶¶ 6, 9 (Decl. Karpilo, Eastern

Oregon Univ.); Ex. 156 ¶¶ 9-10 (Decl. Mitsui, Portland Community College); Ex. 167 ¶¶ 3-6

(Decl. Reveley, College of William & Mary); Ex. 134 ¶¶ 31, 37 (Decl. Herbst, Univ. of Conn.);

Ex. 124 ¶¶ 4, 11 (Decl. Salaveria, Hawaii Dept. of Business, Economic Development and

Tourism); Ex. 168 ¶¶ 3-7 (Decl. Cabrera, George Mason Univ.).

Professionalism in Times of Disruption 1–46 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

Harm to State Colleges and Universities.

191. The States have an interest in the special contributions that DACA grantees make

to State colleges and universities as students, employees, and alumni.

192. Terminating DACA will harm the ability of the States’ colleges and universities,

including public universities, to satisfy their educational missions and prepare the States’ residents

for the workforce. See Ex. 61 ¶¶ 5-7 (Decl. Heatwole); Ex. 146 ¶¶ 12-13 (Decl. Clark et al., Mass.

State Univ. Pres.); Ex. 134 ¶¶ 15-38 (Decl. Herbst); Ex. 133 ¶¶ 15-24 (Decl. Pachis, Eastern Conn.

State Univ.); Ex. 136 ¶¶ 1, 4 (Decl. Hardwick, Univ. of the District of Columbia); Ex. 166 ¶¶ 4-7

(Decl. Sullivan, Univ. of Vermont); Ex. 167 ¶¶ 5-6 (Decl. Reveley); Ex. 137 ¶¶ 4-10 (Decl.

Straney, Univ. of Hawaii); Ex. 131 ¶¶ 4-9 (Decl. Miranda, Colorado State Univ.); Ex. 132 ¶¶ 3-10

(Decl. Allen, Univ. of Colorado); Ex. 135 ¶¶ 3-14 (Decl. Rakes, Delaware Tech. Community

College); Ex. 152 ¶¶ 10-11, 21 (Decl. Mathewson & Pareja, Univ. of New Mexico School of Law);

Ex. 149 (New Mexico Council of Univ. Presidents Letter); Ex. 157 ¶ 6 (Decl. Ridder); Ex 159 ¶ 5

(Decl. Galvan, Univ. of Oregon); Ex. 155 ¶ 5 (Decl. Alexander, Oregon State Univ.); Ex. 154 ¶¶

7, 10 (Decl. Cuprill-Comas); Ex. 153 ¶ 7 (Decl. Karpilo); Ex. 160 ¶¶ 7-8 (Decl. Hagemann,

Western Oregon Univ.); Ex. 158 ¶ 6 (Decl. Trueblood-Gamble, Southern Oregon Univ.); Ex. 168

¶¶ 3-7 (Decl. Cabrera); Ex. 86 ¶¶ 7-9 (Decl. Wadhia, Penn. St. University); Ex. 142 ¶¶ 4-5 (Decl.

Edgehill-Walden, Northern Illinois Univ.); Ex. 145 ¶ 15 (Decl. Kennedy, Mass. Community

Colleges’ Presidents’ Council).

193. DACA has made it possible for many young people to attend colleges and

universities in the States, as work authorization allows DACA grantees to work both while they

pursue their education and after graduation. More than 90% of DACA grantees report that DACA

Professionalism in Times of Disruption 1–47 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

allowed them to pursue educational opportunities previously unavailable to them. See Ex.5¶18

(Decl. Wong). For example:

a. The University of Colorado estimates that there are over 200 DACA grantees

enrolled across the University. Ex. 132 ¶ 5 (Decl. Allen). Colorado State University

has approximately 189 DACA grantees. Ex. 131 ¶ 8 (Decl. Miranda).

b. Delaware Technical and Community College (“DTCC”) has at least 148 DACA

students and at least another 242 graduates who are DACA grantees. See Ex. 135 ¶

5 (Decl. Rakes). Many of DTCC’s DACA students are nontraditional learners who

support their families in addition to pursuing their education. Id. ¶ 8. Another

approximate 75 DACA grantees currently attend Delaware State University

(“DSU”). See Ex. 66 (Scott Gross, DSU immigrant students fear Trump’s DACA

decision, Delawareonline, Sept. 2, 2017).

c. Presently, there are 16 students who have reported their DACA status to the

University of Hawaii and who are pursuing various degrees at multiple University

campuses. Ex. 137 ¶ 6 (Decl. Straney).

d. In the University of Illinois System, approximately 350 of its students and 100 of

its employees would be affected by the termination of DACA. Ex. 143 ¶ 8 (Decl.

Wilson, Univ. of Illinois System).

e. In New York, both the State University of New York (“SUNY”) and the City

University of New York (“CUNY”) have encouraged DACA grantees to apply as

part of their strong commitment to diversity, equity, and inclusion. See Ex. 12 ¶ 10

(Decl. Milliken, CUNY); Ex. 99 (Decl. Johnson, SUNY). At CUNY, hundreds of

Professionalism in Times of Disruption 1–48 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

DACA grantees have enrolled in the university, many with the benefit of full

scholarships. See Ex. 12 ¶ 6 (Decl. Milliken); Ex. 171 ¶8 (Decl. Park).

f. Many of Oregon’s public colleges and universities, including Portland State

University, the University of Oregon, Oregon State University, Oregon Health and

Science University, Eastern Oregon University, Western Oregon University,

Southern Oregon University and Portland Community College enroll, and in some

cases employ, DACA grantees. See Ex. 157 ¶ 4 (Decl. Ridder); Ex. 159 ¶ 5 (Decl.

Galvan); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 154 ¶ 5 (Decl. Cuprill-Comas); Ex.

153 ¶¶ 5-6 (Decl. Karpilo); Ex. 160 ¶¶ 6-7 (Decl. Hagemann); Ex. 158 ¶¶ 4-5 (Decl.

Trueblood-Gamble); Ex. 156 ¶¶ 6, 9 (Decl. Mitsui); Ex. 94 ¶¶ 5-8 8 (Decl. Ramirez

Cuevas); Ex. 101 ¶¶ 1, 3 (Decl. Preciado).

g. Many institutions of higher education in Virginia have students presently enrolled

in their educational programs who are DACA grantees. According to the State

Council of Higher Education for Virginia (“SCHEV”), the Commonwealth's

coordinating body for higher education, there are more than 1,300 DACA students

in Virginia attending institutions of higher education. See Ex. 127 ¶¶ 4 (Decl. Blake,

SCHEV).

h. According to the Washington Student Achievement Council (“WSAC”), the state

agency that advances educational opportunities in Washington, there are more than

1,400 DACA students in Washington attending institutions of higher education. See

Ex. 59 ¶ 9 (Decl. Thompson, WSAC). More than one hundred DACA grantees

attend the University of Washington, based in Seattle. See Ex.57¶4(Decl.

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Ballinger, Univ. of Wash.). More than 150 DACA grantees attend Washington

State University, based in Pullman. See Ex. 58 ¶ 4 (Decl. Loera, Wash. State Univ.).

i. Many public colleges and universities in the States have diverse student

populations, including a high percentage of Latino/Hispanic students and students

who are first generation Americans and first in their families to attend college, as

well as undocumented students. See, e.g., Ex. 162 (Letter from Meghan Hughes,

Community College of Rhode Island); Ex. 150 ¶ 7 (Decl. Abdallah, University of

New Mexico). Although many such schools do not keep data on immigration status,

they know that they have DACA grantees as alumni and current students. See Ex.

163 (Letter from Frank Sánchez, Rhode Island College President); Ex. 164 ¶ 6

(Decl. Farish, Roger Williams University); Ex. 161 (Letter from Richard M. Locke,

Brown University Provost); Ex. 86 ¶ 6 (Decl. Wadhia); Ex. 146 ¶ 9 (Decl. Clark et

al.).

194. DACA grantees who are residents of Connecticut, Delaware, District of Columbia,

Hawaii, Illinois, New Mexico, Massachusetts, Virginia, or Washington receive in-state tuition at

public universities and/or are eligible for other financial assistance. See C.R.S. § 23-7-110; Ex.

132 ¶ 4 (Decl. Allen); Ex. 131 ¶ 7 (Decl. Miranda); Ex. 134 ¶ 8 (Decl. Herbst); Ex. 7 (Mass. Dept.

of Higher Education Memorandum, Residency Status for Tuition Classification Purposes –

Deferred Action for Childhood Arrivals, Nov. 21, 2012); Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 146 ¶

7 (Decl. Clark et al.); Ex. 133 ¶¶ 8-12 (Decl. Pachis); Conn. Gen. Stat. § 10a-29; Ex. 135 ¶¶ 11-12

(Decl. Rakes); Ex. 136 ¶ 6 (Decl. Hardwick); Ex. 150 ¶ 12 (Decl. Abdallah); Or. Rev. Stat. §

352.287; Ex. 167 ¶ 4 (Decl. Reveley); Ex. 106 ¶ 5 (Decl. Suria); Ex. 137 ¶ 5 (Decl. Straney); Ex.

157 ¶ 4 (Decl. Ridder); Ex. 94 ¶ 7 (Decl. Ramirez Cuevas).

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195. Without the DACA program, talented young immigrants will be less likely to apply

to and attend State schools because they will not be able to afford tuition given the loss of available

financial assistance (in some of the States) and the likelihood that they will not be able to work

legally upon graduation (in all the States). Those already enrolled will be less likely to finish their

education at State schools due to the loss of current and future earning potential. See Ex. 12 ¶ 7-8

(Decl. Milliken); Ex. 56 ¶ 7 (Decl. Quinonez); Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 146 ¶¶ 8, 12 (Decl.

Clark et al.); Ex. 72 ¶ 5 (Decl. Teodoro); Ex. 132 ¶ 7 (Decl. Allen); Ex. 131 ¶ 8 (Decl. Miranda);

Ex. 136 ¶ 6 (Decl. Hardwick); Ex. 69 ¶¶ 8, 10 (Decl. Mendes); Ex. 60 ¶¶ 6, 9 (Decl. Guevara); Ex.

145 ¶ 8 (Decl. Kennedy); Ex. 135 ¶¶ 7-10 (Decl. Rakes); Ex. 139 ¶ 6 (Decl. Dietz, Illinois State

Univ.); Ex. 143 ¶ 8 (Decl. Wilson); Ex. 106 ¶ 7 (Decl. Suria); Ex. 105 ¶ 5 (Decl. Oduyoye); Ex.

134 ¶¶ 16-17 (Decl. Herbst); Ex. 137 ¶ 7 (Decl. Straney); Ex. 152 ¶¶ 18-20 (Decl. Mathewson &

Pareja); Ex. 101 ¶ 4 (Decl. Preciado); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 168 ¶ 6 (Decl. Cabrera);

Ex. 160 ¶¶ 7-8 (Decl. Hagemann); Ex. 153 ¶¶ 7-8 (Decl. Karpilo); Ex. 95 ¶ 8 (Decl. Solano); Ex.

157 ¶¶ 6-7 (Decl. Ridder); Ex. 159 ¶¶ 5-6 (Decl. Galvan); Ex. 158 ¶¶ 6, 8, 11 (Decl. Trueblood-

Gamble); Ex. 154 ¶¶ 7-10 (Decl. Cuprill-Comas); Ex. 133 ¶ 13 (Decl. Pachis); Ex. 57 ¶ 4 (Decl.

Ballinger); Ex. 58 ¶ 5 (Decl. Loera); Ex. 163 (Sánchez Letter, Rhode Island College); Ex. 165 ¶ 4

(Decl. Linde, Rhode Island College); Ex. 166 ¶ 6 (Decl. Sullivan); Ex. 167 ¶¶ 4-5 (Decl. Reveley);

Ex. 164 ¶ 7 (Decl. Farish); Ex. 171 ¶¶7-9 (Decl. Park).

196. Additionally, DACA students enrolled in programs that require employment

authorization or entail licensing requirements to complete elements of the program—such as paid

internships, clinical placement, residency training, or programs that require significant lab or field

work—will be severely and adversely impacted if DACA is terminated. Indeed, these students

may not be able to complete the academic requirements of their degrees. See, e.g., Ex. 12 ¶ 8 (Decl.

Professionalism in Times of Disruption 1–51 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

Milliken); Ex. 61 ¶ 6 (Decl. Heatwole); Ex. 135 ¶ 9 (Decl. Rakes); Ex. 136 ¶ 7 (Decl. Hardwick);

Ex. 166 ¶¶ 6-7 (Decl. Sullivan); Ex. 134 ¶ 33 (Decl. Herbst); Ex. 132 ¶ 7 (Decl. Allen); Ex. 131 ¶

8 (Decl. Miranda); Ex. 152 ¶ 19 (Decl. Mathewson & Pareja); Ex. 145 ¶ 9 (Decl. Kennedy); Ex 6

¶¶ 13-15 (Decl. C. Andrade).

197. DACA students in graduate programs at public universities in the States will be

significantly affected because the loss of employment authorization needed for graduate

assistantship (research or teaching) will likely mean the loss of tuition waivers and other benefits

such as subsidized health, dental, and vision insurance for the students and their families. The loss

of graduate assistants also is a significant harm to the States because of the services they provide

in assisting faculty and instructing students. See Ex. 61 ¶ 5 (Decl. Heatwole); Ex. 134 ¶¶ 31-32

(Decl. Herbst).

198. Losing these talented young immigrants will deprive the States’ schools of the

special and unique contributions and perspectives they bring to campus communities, both as

students and alumni. See, e.g., Ex. 57 ¶¶ 4-6 (Decl. Ballinger); Ex. 58 ¶¶ 4-8 (Decl. Loera); Ex. 61

¶ 7 (Decl. Heatwole); Ex. 132 ¶¶ 6-7 (Decl. Allen); Ex. 131 ¶ 9 (Decl. Miranda); Ex. 134 ¶¶ 19-

26, 36-38 (Decl. Herbst); Ex. 133 ¶¶ 23-24 (Decl. Pachis); Ex. 135 ¶¶ 3, 13 (Decl. Rakes); Ex. 137

¶¶ 7-8, 10 (Decl. Straney); Ex. 139 ¶¶ 3, 4, 7 (Decl. Dietz); Ex. 152 ¶¶ 10, 18, 21 (Decl. Mathewson

& Pareja); Ex. 157 ¶ 11 (Decl. Ridder); Ex. 159 ¶¶ 8-9 (Decl. Galvan); Ex. 155 ¶¶ 6, 8 (Decl.

Alexander); Ex. 154 ¶ 7 (Decl. Cuprill-Comas); Ex. 153 ¶ 10 (Decl. Karpilo); Ex. 160 ¶ 5 (Decl.

Hagemann); Ex. 158 ¶ 9 (Decl. Trueblood-Gamble); Ex. 163 (Sánchez Letter); Ex. 165 ¶ 4 (Decl.

Linde); Ex. 166 ¶¶ 6-7 (Decl. Sullivan); Ex. 167 ¶¶ 4-5 (Decl. Reveley); Ex. 136 ¶ 8 (Decl.

Hardwick); Ex. 145 ¶¶ 10-11 (Decl. Kennedy).

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199. The States’ public universities and colleges will also suffer direct financial harm,

including lost tuition revenue and scholarship funds, if DACA students are forced to withdraw or

are unable to enroll. See, e.g., Ex. 57 ¶¶ 4-6 (Decl. Ballinger); Ex. 58 ¶¶ 4-8 (Decl. Loera,); Ex. 61

¶ 7 (Decl. Heatwole); Ex. 134 ¶¶ 27-28 (Decl. Herbst); Ex. 133 ¶¶ 17-18 (Decl. Pachis); Ex. 136

¶ 8 (Decl. Hardwick); Ex. 137 ¶ 9 (Decl. Straney); Ex. 157 ¶¶ 6-7 (Decl. Ridder); Ex. 159 ¶ 5

(Decl. Galvan); Ex. 155 ¶ 5 (Decl. Alexander); Ex. 154 ¶ 8 (Decl. Cuprill-Comas); Ex. 153 ¶¶ 7-

8 (Decl. Karpilo); Ex. 160 ¶¶ 6-8 (Decl. Hagemann); Ex. 158 ¶ 6 (Decl. Trueblood-Gamble); Ex.

163 (Sánchez Letter); Ex. 164 ¶ 9 (Decl. Farish); Ex. 132 ¶ 10 (Decl. Allen); Ex. 131 ¶ 9 (Decl.

Miranda); Ex. 145 ¶¶ 10-14 (Decl. Kennedy). In at least one state (Oregon), current demographic

and enrollment trends and other factors suggest that this lost revenue will not be replaced by other

students for many universities, and will represent an absolute loss of revenue. See Ex. 160 ¶ 8

(Decl. Hagemann); Ex. 158 ¶ 7 (Decl. Trueblood-Gamble); Ex. 157 ¶ 7 (Decl. Ridder).

200. Terminating DACA also will impose additional tangible costs on our public

colleges and universities, which already have begun to experience disruption as a result of

uncertainty over the future of the program and are preparing for the likelihood of expending

additional resources to address the detrimental effects of DACA termination. See, e.g.,Ex.61¶¶

8-9 (Decl. Heatwole); Ex. 134 ¶¶ 35, 38 (Decl. Herbst); Ex. 136 ¶¶ 8-9 (Decl. Hardwick); Ex. 157

¶ 12 (Decl. Ridder); Ex. 155 ¶ 7 (Decl. Alexander); Ex. 153 ¶ 11 (Decl. Karpilo); Ex. 160 ¶ 9

(Decl. Hagemann); Ex. 158 ¶¶ 10, 12 (Decl. Trueblood-Gamble); Ex. 132 ¶ 9 (Decl. Allen); Ex.

167 ¶ 6 (Decl. Reveley).

201. Terminating DACA will further deprive the States of the earning potential of

graduates from public colleges and universities who are most likely to stay in-State and join the

States’ workforces. See, e.g., Ex. 132 ¶ 9 (Decl. Allen). For example:

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a. Nine out of ten Massachusetts public higher education graduates remain in the

State, working or pursuing further education. See Ex. 93 (Mass. Dept. of Higher

Education, Time to Lead, The Need for Excellence in Public Higher Education,

Sept. 2012).

b. The majority of Iowa public higher education graduates remain in Iowa, working

or pursuing further education. See Ex. 67 at 26 (The University of Iowa Pomerantz

Career Center, 2015-2016 Annual Report); Ex. 68 (Iowa State University 6-Month

Post Graduation Status, 2014-2015; Ex. 73 at 2 (Career Ready, University of

Northern Iowa Career Services, 2016).

c. Nearly 90% of Community College of Rhode Island graduates stay in Rhode Island

after graduation to live and raise their families. Ex. 162 (Hughes Letter).

d. Approximately 85 to 87 percent of Eastern Connecticut State University graduates

stay in Connecticut after graduation to “contribute[] to the growth and vitality of

Connecticut’s economy.” Ex. 133 ¶ 16 (Decl. Pachis).

202. Terminating DACA will also undermine the investment in and efforts to develop a

well-educated workforce that can contribute to the States’ overall economies and competitiveness,

and the States’ ability to meet certain critical workforce needs such as healthcare in rural areas.

See, e.g., Ex. 159 ¶ 6 (Decl. Galvan); Ex. 154 ¶¶ 6, 10 (Decl. Cuprill-Comas); Ex. 156 ¶ 11 (Decl.

Mitsui). Currently, 100 DACA grantees are medical students and medical resident physicians at

schools that are members of the Association of American Medical Colleges, and approximately

two-thirds of these DACA grantees are pursuing their medical education in one of the States. See

Ex. 114 ¶ 4 (Decl. Prescott, Association of American Medical Colleges). Aspiring DACA-grantee

physicians contribute to a diverse and culturally responsive workforce to meet the needs of

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underserved populations. See id. ¶¶ 5-6. Terminating DACA will cause the States to lose specific

investments that they have made in this workforce and will leave significant gaps in the States’

healthcare workforce. See id. ¶ 7; Ex. 85 ¶¶ 5-6 (Decl. Swenson). For example:

a. In Illinois, DACA grantees have participated in a loan program, through the Illinois

Finance Authority, in which students receive interest-free loans so long as they

agree to repay the principal and commit to four years of work in an underserved

Illinois community following their graduation. Ex. 141 ¶ 6 (Decl. Pelissero &

Callahan, Loyola Univ. of Chicago). Without DACA, underserved Illinois

communities will lose access to these committed medical professionals. Id. ¶ 8.

b. Oregon’s legislature has established a program to provide scholarships to health

professional students who commit to practicing in rural and underserved areas of

the state for a period of time following graduation. See ORS 348.303. At least one

dental student participant in this program is a DACA recipient who will likely not

be able to complete his commitment to practice dentistry in an underserved area of

Oregon. See Ex. 94 ¶¶ 4, 9-18 (Decl. Ramirez Cuevas).

203. The nation’s leading private universities will suffer harms if DACA is terminated.

Harvard University, for example, has more than 50 DACA students currently enrolled. See Ex. 96

¶ 6 (Decl. Madsen, Harvard Univ.). Tufts University has more than 25 DACA students. See Ex.

97 ¶ 8 (Decl. Jeka, Tufts Univ.). Brown University has approximately 12 DACA students. See Ex.

161 (Locke Letter). Roger Williams University, home to Rhode Island’s only law school, has at

least six DACA students. See Ex. 164 ¶ 6 (Decl. Farish). These students often have had to

overcome significant challenges in order to gain acceptance and bring critical perspectives,

insights, and experiences to their universities. They make important and lasting contributions,

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including through their classroom participation, their extracurricular engagements, and their

commitment to independent study and research. See, e.g.,Ex.97¶5(Decl.Jeka);Ex.96¶¶5,7,

12 (Decl. Madsen); Ex. 144 ¶¶ 4-5 (Decl. Martin, Amherst College); Ex. 147 ¶ 7 (Decl. Stephens,

Mount Holyoke College); Ex. 140 ¶¶ 4, 6, 9 (Decl. Jensen, Illinois Wesleyan Univ.); Ex. 141 ¶¶

4, 5, 6, 7,8 (Decl. Pelissero & Callahan); Ex. 138 ¶¶ 6, 11 (Decl. Salgado, City Colleges of

Chicago); Ex. 164 ¶¶ 8-9 (Decl. Farish); Ex. 161 (Locke Letter).

204. Employment authorization gives these students and their universities an assurance

that they may put their talents to use in the United States job market after graduation, benefitting

the States and the nation as a whole. See, e.g., Ex. 96 ¶¶ 12-15 (Decl. Madsen); Ex. 161 (Locke

Letter); Ex. 144 ¶ 9 (Decl. Martin, Amherst); Ex. 147 ¶¶ 8-9 (Decl. Stephens).

205. DACA has allowed these students to step outside the shadow of their immigration

status and to participate fully as members of academic and campus communities in ways that likely

would not be possible otherwise. See, e.g., Ex. 140 ¶¶ 7, 8 (Decl. Jensen); Ex. 97 ¶ 7 (Decl. Jeka);

Ex. 96 ¶ 12 (Decl. Madsen); Ex. ¶ 7 (Decl. Martin, Amherst). Terminating DACA will take

important opportunities away from DACA students and reintroduce fear and uncertainty into their

lives, with significant adverse effects on these students, their universities, and the broader

community. See Ex. 140 ¶¶ 7, 8 (Decl. Jensen); Ex. 97 ¶¶ 8-10 (Decl. Jeka); Ex. 96 ¶ 13 (Decl.

Madsen); Ex. 144 ¶ 10 (Decl. Martin, Amherst); Ex. 148 ¶ 6 (Decl. Martin, Northeastern Univ.);

Ex. 147 ¶ 10 (Decl. Stephens); Ex. 161 (Locke Letter); Ex. 103 ¶ 8 (Decl. Perla); Ex. 106 ¶ 7 (Decl.

Suria); Ex. 105 ¶ 5 (Decl. Oduyoye); Ex. 104 ¶ 7 (Decl. G.L.); Ex. 102 ¶¶ 12-14 (Decl. Juarez);

Ex. 152 ¶ 19 (Decl. Mathewson & Pareja); Ex. 151 ¶¶ 14, 16 (Decl. Roth, UNMHSC); Ex. 107 ¶¶

7-8 (Decl. Torrez).

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Harm to State Law, Regulation, and Policy.

206. The States have an interest in preserving their legal, regulatory, and policy

frameworks that take the DACA program into account.

207. Many of the States have enacted laws, promulgated regulations, and/or established

policies that contemplate and rely on the DACA program. If DACA is terminated, these legal,

regulatory, and policy regimes will be harmed. For example:

a. Since 2012, Connecticut has granted driver’s licenses to approximately 5,000

DACA grantees who are Connecticut residents, many of whom have also purchased

and registered vehicles in Connecticut. See Ex. 121 ¶¶ 6-7 (Decl. Bzdyra). DACA

grantees who have purchased and registered vehicles will have paid Connecticut

sales tax and local property taxes for such vehicles. Id. ¶¶ 8-9.

b. Illinois has enacted laws to enable DACA grantees to participate in the economy

professionally. These include providing that no person in Illinois shall be prohibited

from receiving a law license solely because he or she is not a citizen and explicitly

allowing DACA grantees to apply for a license to practice law. See 705 Ill. Comp.

Stat. 205/2. DACA grantees are also eligible to receive state-issued identification

cards and drivers’ licenses; own motor vehicles which are registered, titled and

licensed in the state of Illinois; and own businesses and property in Illinois. See Ex.

125 ¶ 6 (Decl. White, Illinois Secretary of State). The Office of the Illinois

Secretary of State will be adversely impacted if DACA is terminated by the loss of

revenue from licensing fees and taxes, as well as costs and system disruptions

related to eligibility determinations of license renewals for DACA recipients. Id. ¶

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7. Illinois administrative rules, regulations and laws will also need to be amended

to conform to the changes in the DACA program. Id.

c. Under DACA, thousands of young Massachusetts and Oregon residents are able to

receive social security cards and thereby have access to driver’s licenses, which

they depend on to attend heath care appointments, to commute to work and school,

and to attend to other necessities for themselves and their family members. See Ex.

9 (Mass. Registry of Motor Vehicles, Social Security Number (SSN) Requirements);

ORS 807.021 (proof of legal presence required to issue, renew or replace driver

license); Ex. 175 (Attorney General Advisory Letter to Acting Commissioner J.

Eric Boyette, Jan.17, 2013); Ex. 101 ¶ 3 (Decl. Preciado); Ex. 71 ¶¶ 5-7, 9 (Decl.

I.T.); Ex. 69 ¶¶ 7-8 (Decl. Mendes); Ex. 70 ¶¶ 5, 8 (Decl. I.V.). Terminating

DACA will make it impossible for these individuals to apply for new licenses or

renew the licenses they have, leading to a number of adverse outcomes, including

a decrease in licensing fees paid to the States, a decrease in productivity of these

residents, and an increase in unlicensed drivers on the road.

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Harm to Public Health and Health Care Costs.

208. The States have an interest in protecting the public health and in minimizing health

care costs expended by the States.

209. Terminating DACA will harm public health and impose additional health care costs

on the States. Work authorization allows DACA grantees to access employer-sponsored health

benefits. See, e.g., Ex. 72 ¶ 4 (Decl. Teodoro); Ex. 69 ¶¶ 6, 10 (Decl. Mendes); Ex. 171 ¶18 (Decl.

Park); Ex. 172 ¶8 (Decl. Morales); Ex. 110 ¶ 8 (Decl. Schlosberg, District of Columbia Department

of Health Care Finance). In fact, more than 50% of DACA grantees have obtained employer-

provided insurance. See Ex. 5 ¶ 12 (Decl. Wong). Without these benefits, more of the States’

residents are likely to forgo needed health care, including preventive care, which will create more

costly health problems in the long run. It also will cause more people to rely on state-funded and/or

state-administered public health care and other benefits and thus impose additional costs on the

States. For example:

a. Colorado provides emergency Medicaid regardless of immigration status, which

covers the hospital delivery of children for qualified undocumented immigrants.

See Ex. 78 at 1-2 (Colorado Department of Health Care Policy and Financing letter

dated June 28, 2005).

b. Delaware provides limited emergency and labor/delivery services to residents

whose immigration status otherwise keeps them from accessing health care benefits

and services. See Ex. 122 ¶¶ 6-7 (Decl. Groff).

c. The D.C. HealthCare Alliance is the District of Columbia’s state-sponsored

insurance program of last resort. See Ex. 110 ¶¶ 6, 9 (Decl. Schlosberg); see also

D.C. Code § 7-771.07(2). The placement of all of the individuals in the District

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participating in the DACA program in 2017 onto the D.C. HealthCare Alliance

would require the District to spend additional money on that program, harm District

finances, and prevent the District from spending that money on other public health

priorities. See Ex. 110 ¶ 10 (Decl. Schlosberg). In fact, the placement of these

individuals onto the D.C. HealthCare Alliance could cost the District an additional

$283,000 per month in District of Columbia Fiscal Year 2018. See id. ¶ 12.

d. Under Hawaii’s Prepaid Health Care Act, Haw. Rev. Stat. ch. 393, Hawaii

employers are required to provide regular employees who meet wage requirements

with coverage under a qualifying prepaid group health care plan. See Haw. Rev.

Stat. § 393-11. The termination of DACA will likely cause more people to rely on

Hawaii’s state-administered Medicaid One-Time Emergency services. Hawaii

reimburses hospitals for emergency and urgent services provided to qualifying

uninsured Hawaii patients, including undocumented immigrants. Ex. 123 ¶¶ 5-6

(Decl. Peterson, Med-QUEST Division, Hawaii Department of Human Services).

e. In Massachusetts, DACA grantees who lose employer-based coverage may be

eligible for MassHealth, a state-funded health insurance program. See Ex. 83 ¶¶ 5-

7 (Decl. Caplan, Mass. Executive Office of Health and Human Services). In

addition, Massachusetts will very likely have to cover some, if not all, of the costs

of health care visits for these individuals through its state-administered Health

Safety Net program or other programs. Id. ¶¶ 8-9. Finally, some DACA grantees

who lose employer-based coverage will likely use providers, like community based

health centers, that are funded in part by grants and other funding streams available

through the state. Id. ¶¶ 10-14.

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210. New York State currently funds Medicaid coverage for low-income undocumented

immigrants who have received deferred action, including DACA-eligible immigrants. See Ex. 77

(Office of Health Insurance Program, Children’s Health Insurance Program Reauthorization Act

(CHIPRA) Expanded Coverage for Certain Qualified and PRUCOL Aliens, May 7, 2013).

Terminating DACA may reduce access to Medicaid for current DACA grantees. New York State

currently funds Medicaid coverage for low-income undocumented immigrants who have

received deferred action, including DACA-eligible immigrants. See Id. Individuals in New York

wh o are n o t DAC A gran t e es m a y only qualify for Medicaid coverage of care and services

necessary to treat an emergency condition. Terminating DACA will require New York to either

seek a State legislative change to maintain current Medicaid coverage formerly DACA-eligible

immigrants with state dollars only or limit Medicaid coverage to treatment of emergency conditions

for some or all of these individuals.

Harm to Small Cities, Counties, and Towns.

211. The States have an interest in preventing economic and other harm to their small

cities, towns, counties, and other small governmental jurisdictions.

212. Terminating DACA will harm small governmental jurisdictions in the States. If

DACA is terminated, small governmental jurisdictions will lose talented and trained employees,

adversely affecting operations and costing time, money, and effort to replace and retrain these

employees. See, e.g., Ex. 111 ¶¶ 10-11 (Decl. Ambrosino & Bourque, City of Chelsea, MA and

Chelsea Public Schools); Ex. 113 ¶¶ 4-6 (Decl. Schuh). Many of these employees are highly skilled

workers, including in critical fields such as nursing. See, e.g., Ex. 135 ¶¶ 10, 13 (Decl. Rakes); Ex.

98 ¶ 7, 10-11 (Naveed).

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213. Terminating DACA will have a direct, adverse effect on economies and sales tax

revenues of small cities and towns, as DACA grantees will lose their jobs and refrain from buying

goods and services from local vendors. See, e.g., Ex. 111 ¶ 16 (Decl. Ambrosino & Bourque); Ex.

176 ¶¶ 8-10, 13 (Decl. Kennedy, City of Newburgh).

214. DACA grantees average higher earning capacities than their undocumented peers

and are able to better participate in the States’ economies, for example by purchasing homes and

cars that are taxed by our state and local authorities. See Ex. 5 ¶ 16 (Decl. Wong). If DACA is

terminated, cities and towns will lose other local tax revenue, including real estate taxes and motor

vehicle excise taxes, from DACA grantees who can no longer access lines of credit or afford to

buy cars or homes.

215. If DACA is terminated, small governmental jurisdictions will lose the benefits that

full access by and participation of a diverse community fosters through community activities,

including, for example, activities in libraries and local government-sponsored recreational camps

or sports leagues. See, e.g, Ex. 109 ¶¶ 5-6 (Decl. Meyer, New Castle County, Del.). The

termination of DACA will also have a destructive effect on local industries of small governmental

jurisdictions that rely on the work of highly qualified and trained DACA recipients. Ex. 176 ¶¶

4, 8-10, 13 (Decl. Kennedy, City of Newburgh).

216. Terminating DACA will also adversely affect public safety, health, and wellbeing

in the States’ cities, towns, and schools. Without DACA status, DACA grantees afraid of

deportation will be less likely to report violence, abuse, crimes or other harms to the community.

If DACA is terminated, 53% of current DACA grantees may be less likely to report a crime they

witnessed; 47% may be less likely to report a crime even if they were the victim; 48% may be less

likely to go to the hospital if they suffered an injury, and 60% may be less likely to report wage

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theft by their employer. See Ex. 5 ¶ 24 (Decl. Wong). This will make it harder for local police and

other officials to provide for the public safety and welfare. See, e.g., Ex. 111 ¶ 15 (Decl. Ambrosino

& Bourque); Ex. 108 ¶¶ 7-10 (Decl. Hughes); Ex. 109 ¶ 6 (Decl. Meyer); Ex. 116 ¶¶ 10-13 (Decl.

Graham, Delaware Community Legal Aid Society, Inc.). For example, since the Trump

Administration announced plans to end DACA, Delaware law enforcement and legal aid have

recognized an increased reluctance among Delaware immigrants to engage with aspects of the

criminal justice system—even when that interaction would have been to protect their own victim

rights. See, e.g., Ex. 108 ¶¶ 7-10 (Decl. Hughes); Ex. 116 ¶¶ 10-13 (Decl. Graham).

Harm to School Districts, Including Small School Districts.

217. The States have an interest in effectively educating elementary and secondary

students and in preventing economic harm to small and large school districts.

218. If DACA is terminated, public school districts will suffer financial harm as well as

harm to their educational missions.

219. The termination of DACA will cause school districts to lose talented and

experienced teachers and other staff members who are DACA grantees, adversely affecting student

education and costing time, money, and effort to replace and retrain these employees. See Ex. 111

¶ 11 (Decl. Ambrosino & Bourque); Ex. 79 (Whaley, Denver Public Schools say ending DACA

would have “catastrophic” effect, Denver Post, Aug. 31, 2017).

220. In Connecticut, Colorado, Illinois, Massachusetts, New Mexico, and New York,

Teach for America has placed teachers who are DACA grantees in shortage-area subjects and hard-

to-staff schools in low-income communities. See Ex. 11 ¶¶ 3, 11 (Decl. Carrizales, Teach For

America). Terminating DACA will not only deprive schools of their employees, but also deprive

students of teachers whose live experiences may mirror their own lives. Id. ¶¶ 10, 11.

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221. Public elementary and secondary schools have a constitutional obligation to

educate students irrespective of immigration status. See Plyler v. Doe, 457 U.S. 202 (1982). The

termination of DACA will harm the States’ ability to educate DACA-eligible students as required

by federal law. See Ex. 111 ¶¶ 12,14 (Decl. Ambrosino & Bourque); Ex. 112 ¶ 3-4 (Decl.

Kanninen, Arlington, VA Public Schools).

222. If DACA-eligible students are no longer able to work legally after high school or

cannot afford to go to college, these students will be less motivated to achieve in school. See Ex.

111 ¶ 12 (Decl. Ambrosino & Bourque); Ex. 112 ¶ 3 (Decl. Kanninen). This will result in lower

scores and higher dropout rates for these students. See Ex. 111 ¶ 12 (Decl. Ambrosino & Bourque).

223. Poorer performance will impact school districts’ accountability ratings and could

require removal of administrators and teachers as well as increased state funding to flow to these

school districts. See, e.g., Ex. 179 (Mass. Dep’t of Early and Secondary Educ., School Leader’s

Guide to the 2017 Accountability Determinations, Sept. 2017). Decreased school performance will

also negatively impact the community, with families not wanting to buy homes in a lower-

performing district. See Ex. 111 ¶ 13 (Decl. Ambrosino & Bourque).

224. Finally, DACA-eligible students will experience higher levels of anxiety about

their futures and their families’ futures, and will require additional counseling and support from

guidance counselors and other school personnel, costing school districts time and money. See Ex.

111 ¶ 14 (Decl. Ambrosino & Bourque).

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Harm to Businesses and Nonprofits.

225. The States have an interest in their tax revenues, economies, and the financial well-

being of their businesses and nonprofits.

226. Immigration is an important economic driver in the States. Many of the States’

workers are immigrants, and many of those immigrant workers are DACA grantees. See, e.g., Ex.

5 ¶ ¶ 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84, 88 (Decl. Wong); Ex. 126 ¶ 11

(Decl. Read, Oregon State Treasurer); Ex. 95 ¶ 7 (Decl. Solano); Ex. 101 ¶ 4 (Decl. Preciado); Ex.

100 ¶ 6 (Decl. Nicolas); Ex. 124 ¶¶ 4, 10-11 (Decl. Salaveria); Ex. 168 ¶ 3 (Decl. Cabrera); Ex.

120 ¶ 4 (Decl. Romero, Barrera Legal Group, PLLC); Ex. 174 ¶¶ 4,6,8 (Decl. Wylde, Partnership

for NYC); Ex. 81 ¶¶ 2-3, 5-6 (Decl. Pinsky, ABNY). Many companies in the States are dependent

on DACA grantees to operate and grow their businesses. The market for highly skilled workers

and employees is extremely competitive. Terminating DACA grantees’ work authorization will

inhibit the States’ companies’ ability to adequately staff their organizations, develop their

workforces, recruit talent, and maintain trained employees. The Center for American Progress

estimates that it costs businesses roughly one-fifth of a worker’s salary to replace a worker due to

productivity loss, the cost of hiring and training a new employee, and ramp-up periods for new

employees. See Ex. 80 (Heather Boushey and Sarah Jane Glynn, There Are Significant Business

Costs to Replacing Employees, Center for American Progress, November 16, 2012).

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227. If companies lose employees and recruiting efforts are less successful, their ability

to develop and deliver successful products and services may be adversely affected. See e.g., Ex.

63 ¶¶ 4-5 (Decl. Blackwell-Hawkins, Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex.

8 ¶¶ 7-8 (Decl. Mutty, Starbucks); Ex. 84 ¶¶ 4-11 (Decl. Kalvert, TripAdvisor); Ex. 119 ¶¶ 5-6

(Decl. Tingen, Tingen & Williams, PLLC); Ex. 174 ¶¶ 5-8 (Decl. Wylde, Partnership for NYC).

For example:

a. Colorado’s talented workforce has attracted major industries to the State, including

aerospace, high-tech, start-ups, and STEM-based employers. Many companies in

Colorado rely heavily on immigrants to operate their business. Terminating DACA

will disrupt these companies with DACA employees that are forced to terminate

qualified and talented employees.

b. In Hawaii, businesses rely heavily on immigrants who bring their talent,

knowledge, and expertise to Hawaii’s labor force. See Ex. 124 ¶ 4 (Decl. Salaveria).

Because of Hawaii’s low unemployment rate, the state’s businesses have had

difficulty filling their vacant positions. Id. ¶ 8. The departure of the DACA

population from Hawaii’s workforce will cause even greater difficulty for Hawaii

employers, and have a negative impact on Hawaii’s economy. Id. ¶ 11.Agriculture

and forestry are two of Virginia’s largest private industries. The Virginia

Department of Agriculture and Consumer Services estimates that approximately

1,944 of Virginia’s DACA grantees employed in primary agricultural production.

See Ex. 129 ¶ 3 (Decl. Gooden, Virginia Sec’y of Agriculture and Forestry).

Further, a percentage of DACA recipients are also likely to be regulated pesticide

applicators. The loss of DACA status for these individuals would harm agricultural

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production and reduce income to Virginia from pesticide applicator licensing fees.

See id. ¶ 7.

c. In Washington, DACA grantees work for the largest companies as software

engineers, finance professionals, and retail and sales associates, including for

Amazon, Microsoft and Starbucks. See Ex. 63 ¶¶ 4-5 (Decl. Blackwell-Hawkins,

Amazon); Ex. 90 ¶¶ 7-12, 14 (Decl. Shively, Microsoft); Ex. 8 ¶¶ 7-8 (Decl. Mutty,

Starbucks).

d. In New York, businesses depend on the work of DACA grantees. See Ex. 170 ¶¶ 3,

7-8, 10 (Decl. Schwartz, Univision); Ex. 169 ¶ 7 (Decl. Greenberg, Warby Parker);

Ex. 172 ¶¶ 4-5 (Decl. Morales); Ex. 174 ¶¶ 4-8 (Decl. Wylde, Partnership for NYC).

DACA recipients are the consumer base for many New York businesses. Ex. 170

¶¶ 5-6 (Decl. Schwartz, Univision); Ex. 169 ¶¶ 6-7 (Decl. Greenberg, Warby

Parker). DACA grantees also provide diverse perspectives, and promote

inclusiveness. Ex. 170 ¶¶ 3-9 (Decl. Schwartz, Univision); Ex. 169 ¶¶ 8-11 (Decl.

Greenberg, Warby Parker); Ex. 174 ¶¶ 5,8 (Decl. Wylde, Partnership for NYC); ;

Ex. 81 ¶¶ 2-8 (Decl. Pinsky, ABNY).

228. The impact on small businesses and nonprofit organizations will be especially stark.

For entities with limited staff and operating budgets, losing even one skilled and trained DACA

grantee employee will place an economic strain on operations, hiring, and training. See, e.g, Ex.

118 ¶¶ 9-11 (Decl. Igneri); Ex. 117 ¶¶ 5-8 (Decl. Tracy); Ex. 120 ¶ 4 (Decl. Romero); Ex. 119 ¶¶

5-6 (Decl. Tingen). Further, many DACA grantees contribute their talents to nonprofits in a range

of fields, including education and civic engagement. See, e.g, Ex. 55 ¶¶ 8-9 (Decl. Perez); Ex 98

¶ 12 (Decl. 98 Naveed).

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229. The mission of nonprofit organizations in the States will also be adversely affected.

Ex. 174 ¶¶ 3-8 (Decl. Wylde, Partnership for NYC). Many nonprofit organizations in the States

serve immigrant communities, including by providing legal services and advocacy. Termination

of DACA will throw families into crisis, creating higher demand for services from organizations

with limited resources. See Ex. 117 ¶¶ 12-14 (Decl. Tracy, Brazilian Worker Center); Ex. 115 ¶¶

2-7 (Decl. Tack-Hooper, Am. Civil Liberties Union of Delaware); Ex. 116 ¶¶ 2-8 (Decl. Graham).

Harm to Families.

230. The States have an interest in protecting the welfare of all of their residents,

including the families of DACA grantees.

231. Terminating DACA will harm the general welfare of the States’ DACA grantees

and their families in profound ways. Most DACA grantees live in households with family members

who are American citizens. One expert survey estimates that 73% percent of DACA grantees in

the country live with a citizen sibling, spouse, or child. See Ex. 5 ¶ 34 (Decl. Wong). Terminating

DACA will lead to increased uncertainty in these mixed-status families, and it will increase the

likelihood of splitting DACA grantees from their citizen family members. See e.g., Ex. 176 ¶ 12

(Decl. Kennedy, City of Newburgh). Moreover, many of these families rely on the income of a

DACA grantee, and DACA termination will threaten their financial and housing security. See, e.g.,

Ex. 87 ¶ 8 (Decl. Rubin); Ex. 135 ¶ 8 (Decl. Rakes); Ex. 157 ¶¶ 12-13 (Decl. Ridder); Ex. 172 ¶¶

4-5, 7-8 (Decl. Morales); Ex. 173 ¶¶ 3, 5-6 (Decl. Hidalgo Hernandez).

232. Many DACA grantees also have families overseas, including parents and

siblings. DACA had made it possible for these grantees to visit family members, often for the first

time in years. See, e.g., Ex. 72 ¶ 7 (Decl. Teodoro); Ex. 70 ¶ 5 (Decl. I.V.). Terminating DACA

will cause DACA grantees to lose touch with these family members and become further estranged

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from their countries of origin, making the prospect of deportation even more injurious to DACA

grantees and their families.

FIRST CAUSE OF ACTION

(Fifth Amendment – Equal Protection)

233. The States reallege and incorporate by reference the allegations set forth in each of

the preceding paragraphs of this Amended Complaint.

234. The Due Process Clause of the Fifth Amendment prohibits the federal government

from denying equal protection of the laws.

235. The DHS Memorandum target individuals for discriminatory treatment, without

lawful justification.

236. The DHS Memorandum was motivated, at least in part, by a discriminatory motive

and/or a desire to harm a particular group.

237. The discriminatory terms and application of the DHS Memorandum cannot be

sufficiently justified by federal interests, under any standard of review.

238. Through their actions above, Defendants have violated the equal protection

guarantee of the Fifth Amendment.

239. Defendants’ violation causes ongoing harm to the States and their residents.

SECOND CAUSE OF ACTION

(Fifth Amendment – Due Process – Information Use)

240. The States reallege and incorporate by reference the allegations set forth in each of

the preceding paragraphs of this Amended Complaint.

241. The Due Process Clause of the Fifth Amendment requires that actions taken by the

federal government be fundamentally fair.

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242. Given the federal government’s prior representations about the allowable uses of

information provided by DACA applicants, the change to DHS’s policy of protecting against the

disclosure of information in DACA applications and renewal requests is fundamentally unfair.

243. Also given the federal government’s prior representations about the allowable uses

of information provided by DACA applicants, the new policy’s refusal to prohibit the use of

information contained in DACA applications and renewal requests for purposes of immigration

enforcement—including identifying, apprehending, detaining, or deporting non-citizens—is

fundamentally unfair.

244. Through their actions above, Defendants have violated the due process guarantee

of the Fifth Amendment.

245. Defendants’ violation causes ongoing harm to the States and their residents.

THIRD CAUSE OF ACTION

(Equitable Estoppel)

246. The States reallege and incorporate by reference the allegations set forth in each of

the preceding paragraphs of this Amended Complaint.

247. The doctrine of equitable estoppel prevents injustice where the government has

made representations on which individuals have reasonably and detrimentally relied.

248. In order to encourage DACA applications, Defendants made repeated, affirmative

statements about the protections that would be given to the personal information provided by

DACA applicants. Defendants also placed affirmative restrictions on the use of such information

for purposes of immigration enforcement.

249. In submitting DACA applications and renewal requests, DACA applicants

reasonably and detrimentally relied on Defendants’ affirmative representations and conduct.

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250. Defendants should be equitably estopped from revoking DHS’s longstanding,

affirmative policy of protecting against the disclosure of information in DACA applications and

renewal requests.

251. Equitable estoppel should also bar Defendants from implementing DHS’s new

policy of refusing to prohibit the use of information contained in DACA applications and renewal

requests for purposes of immigration enforcement, including to identify, apprehend, detain, or

deport non-citizens.

252. Failure to estop Defendants from revoking DHS’s previous policy and imposing

the new policy will harm the States and their residents.

FOURTH CAUSE OF ACTION

(Administrative Procedure Act – Substantively Arbitrary and Capricious, Abuse of Discretion, Contrary to Constitution or Statute)

253. The States reallege and incorporate by reference the allegations set forth in each of

the preceding paragraphs of this Amended Complaint.

254. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), prohibits federal

agency action that is arbitrary, unconstitutional, and contrary to statute. In implementing the DHS

Memorandum and terminating DACA with minimal formal guidance, federal agencies have taken

unconstitutional and unlawful action, as alleged herein, in violation of the Administrative

Procedure Act.

255. In promulgating and implementing the DHS Memorandum, federal agencies have

abused their discretion, and acted arbitrarily and capriciously and otherwise not in accordance with

law, in violation of the APA.

256. Defendants’ violation causes ongoing harm to the States and their residents.

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FIFTH CAUSE OF ACTION

(Administrative Procedure Act – Procedurally Arbitrary and Capricious, Notice and Comment)

257. The States reallege and incorporate by reference the allegations set forth in each of

the preceding paragraphs of this Amended Complaint.

258. The APA, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct

formal rule making before engaging in action that impacts substantive rights.

259. DHS is an “agency” under the APA. 5 U.S.C. § 551(1).

260. The actions that DHS has taken to implement the DHS Memorandum are “rules”

under the APA. 5 U.S.C. § 551(4).

261. In promulgating and implementing the DHS Memorandum, federal agencies have

categorically and definitively changed the substantive criteria by which individual DACA grantees

work, live, attend school, obtain credit, and travel in the United States. Federal agencies did not

follow the procedures required by the APA before taking action impacting these substantive rights.

262. With exceptions that are not applicable here, agency rules must go through notice-

and-comment rulemaking. 5 U.S.C. § 553.

263. The Defendants promulgated and relied upon the rules established by the DHS

Memorandum without authority and without notice-and-comment rulemaking in violation of the

APA.

264. The States will be impacted because they have not had the opportunity to comment

on the termination of DACA.

265. Defendants’ violation causes ongoing harm to the States and their residents.

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SIXTH CAUSE OF ACTION

(Regulatory Flexibility Act – Failure to Issue Regulatory Flexibility Analyses)

266. The States reallege and incorporate by reference the allegations set forth in each of

the preceding paragraphs of this Amended Complaint.

267. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal

agencies to analyze the impact of rules they promulgate on small entities and publish initial and

final versions of those analyses for public comment. 5 U.S.C. §§ 603-604.

268. “Small entities” for purposes of the RFA includes small businesses, small

nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6).

269. The promulgation and implementation of the DHS Memorandum established

“rules” under the RFA. 5 U.S.C. § 601(2).

270. Implementation of the DHS Memorandum is likely to have a significant economic

impact on a substantial number of small entities. 5 U.S.C. § 602(a)(1).

271. Defendants have not issued the required analyses of DHS’s new rules.

272. Defendants’ failure to issue the initial and final Regulatory Flexibility Analyses

violates the RFA and is unlawful.

273. Defendants’ violation causes ongoing harm to the States, their small governmental

jurisdictions, nonprofits, and businesses, and their residents.

SEVENTH CAUSE OF ACTION

(Fifth Amendment-Procedural Due Process) 274. The Plaintiff States re-allege and incorporate by reference the allegations set forth

in each of the preceding paragraphs of this Amended Complaint.

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275. The Due Process Clause of the Fifth Amendment prohibits the federal government

from depriving individuals of their liberty interests or property interests without due process of

law.

276. Defendants have failed to provide DACA grantees with the due process to which

they are entitled, by failing to provide them with adequate notice about the procedures and timeline

for renewing their DACA status.

277. Defendants have failed to provide DACA grantees with the due process to which

they are entitled, by failing to give them adequate notice about the general termination of the

DACA program after March 5, 2018 and by failing to provide DACA grantees adequate notice of

their inability to apply for renewal of their DACA status after March 5, 2018.

278. Defendants are thus depriving Plaintiff States’ residents of their liberty and property

interests in living and working in the United States without providing them adequate notice or

opportunity to be heard.

279. Defendants’ conduct violates the Due Process Clause of the Fifth Amendment.

280. Defendants’ violations cause ongoing harm to the States and their residents.

PRAYER FOR RELIEF

281. Wherefore, the States pray that the Court:

a. Declare that the DHS Memorandum terminating the DACA program is

unauthorized by and contrary to the Constitution and laws of the United

States;

b. Declare that the actions that DHS has taken to implement the DHS

Memorandum terminating the DACA program are procedurally unlawful

under the APA;

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c. Declare that the actions that DHS has taken to implement the DHS

Memorandum terminating the DACA program are substantively unlawful

under the APA;

d. Declare that the actions that DHS has taken to implement the DHS

Memorandum terminating the DACA program are unlawful under the

RFA;

e. Enjoin Defendants from terminating the DACA program, including

enjoining the Defendants from limiting rights to submit applications to

renew DACA benefits, pending further orders from this Court;

f. Enjoin Defendants from revoking the DHS policy protecting DACA

application and renewal data from disclosure to ICE, CBP, or any other

agency for purposes of immigration enforcement;

g. Enjoin Defendants from using information obtained in any DACA

application or renewal request to identify, apprehend, detain, or deport any

DACA applicant or member of any DACA applicant’s family, or take any

action against a DACA applicant’s current or former employer; and

h. Award such additional relief as the interests of justice may require.

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DATED: October 4, 2017

ERIC T. SCHNEIDERMAN Attorney General of the State of New York

By: /s Lourdes M. Rosado Lourdes M. Rosado, Bureau Chief Sania Khan, Assistant Attorney General Diane Lucas, Assistant Attorney General Ajay Saini, Assistant Attorney General Civil Rights Bureau Office of the New York State Attorney General 120 Broadway, 23rd Floor New York, NY 10271 [email protected] [email protected] [email protected] [email protected] Tel. (212) 416-6348 Fax (212) 416-8074

MAURA HEALEY BOB FERGUSON Attorney General for the Commonwealth of Attorney General of the State Washington Massachusetts By: /s/ Robert W Ferguson By: /s Abigail B. Taylor Robert W. Ferguson (pro hac vice) Jonathan B. Miller Attorney General Genevieve C. Nadeau (pro hac vice) Colleen M. Melody (pro hac vice) Abigail B. Taylor (pro hac vice) Civil Rights Unit Chief Assistant Attorneys General Marsha Chien (pro hac vice) Assistant Attorney General Office of the Attorney General Office of the Attorney General One Ashburton Place 800 Fifth Avenue, Suite 2000 Boston, MA 02108 Seattle, WA 98104 [email protected] [email protected] [email protected] [email protected] [email protected] Tel. (206) 464-7744 Tel. (617) 727-2200

Professionalism in Times of Disruption 1–76 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

GEORGE JEPSEN KARL A. RACINE Attorney General of the State of Connecticut Attorney General for the District of Columbia By: /s Mark K. Kohler By: /s Robyn R. Bender Mark F. Kohler (pro hac vice) Robyn R. Bender* Assistant Attorney General Deputy Attorney General Connecticut Office of the Attorney Public Advocacy Division General 441 4th Street, NW 55 Elm Street, P.O. Box 120 Suite 650 North Hartford, CT 06106 Washington, DC 20001 [email protected] [email protected] Tel. (860) 808-5020 Tel. (202) 724-6610 Fax (202) 730-0650

DOUGLAS S. CHIN LISA MADIGAN Attorney General of the State of Hawaii Attorney General of the State of Illinois

By: /s Donna H. Kalama By: /s Anna P. Crane Donna H. Kalama (pro hac vice) Anna P. Crane, Assistant Attorney Deputy Attorney General General (pro hac vice) State of Hawaii, Department of the Karyn L. Bass Ehler, Attorney General Chief, Civil Rights Bureau 425 Queen Street Harpreet Khera, Deputy Bureau Chief, Honolulu, HI 96813 Special Litigation Bureau [email protected] Caitlyn McEllis, Assistant Attorney Tel. (808) 586-1224 General Jeff VanDam, Assistant Attorney Genera Civil Rights Bureau Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 [email protected] Tel. (312) 814-3400 Fax (312) 814-3212

THOMAS J. MILLER HECTOR H. BALDERAS Attorney General of the State of Iowa Attorney General of the State of New Mexico

By: /s Nathan Blake By: /s Tania Maestas Nathan Blake (pro hac vice) Tania Maestas, (pro hac vice) Deputy Attorney General Deputy Attorney General Office of the Attorney General of Iowa Ari Biernoff, Assistant Attorney General 1305 E. Walnut Street Jennie Lusk, Assistant Attorney General Des Moines, IA 50319 New Mexico Office of the Attorney [email protected] General Tel. (515) 281-4325 408 Galisteo St. Fax (515) 281-4209 Santa Fe, NM 87501 [email protected] Tel. (505) 490-4060 Fax (505) 490-4883

Professionalism in Times of Disruption 1–77 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

MATTHEW DENN PETER KILMARTIN Attorney General of the State of Delaware Attorney General of the State of Rhode Island By: s/ Aaron Goldstein By: /s Rebecca T. Partington Aaron Goldstein* Rebecca T. Partington (pro hac vice) State Solicitor Chief, Civil Division Aleine Cohen* Michael W. Field (pro hac vice) Deputy Attorney General Assistant Attorney General Delaware Department of Justice Adam D. Roach (pro hac vice) 820 N. French St. Special Assistant Attorney General Wilmington, DE 19801 RI Office of the Attorney General [email protected] 150 South Main Street [email protected] Providence, RI 02903 Tel. (302) 577-8400 [email protected] [email protected] [email protected] Tel. (401) 274-4400

JOSH STEIN ELLEN F. ROSENBLUM Attorney General of the State of North Attorney General of the State of Oregon Carolina By: /s Brian De Haan By: /s Sripriya Narasimhan Brian De Haan* Sripriya Narasimhan* Assistant Attorney General North Carolina Department of Justice Trial Attorney 114 W. Edenton Street [email protected] Raleigh, NC 27603 Tel. (971) 673-1880 [email protected] Fax (971) 673-5000 Tel. (919) 716-6400

JOSH SHAPIRO THOMAS J. DONOVAN, JR. Attorney General of the Commonwealth of Attorney General of the State of Vermont Pennsylvania By: /s Benjamin D. Battles By: /s Jonathan Scott Goldman Benjamin D. Battles, (pro hac vice) Jonathan Scott Goldman* Solicitor General Executive Deputy Attorney General, Julio A. Thompson*, Assistant Attorney Civil Law Division General, Civil Rights Unit Michael J. Fischer, (pro hac vice) Office of the Vermont Attorney General Chief Deputy Attorney General, Impact 109 State Street Litigation Section Montpelier, VT 05609 Office of Attorney General [email protected] 16th Floor, Strawberry Square Tel. (802) 828-5500 Harrisburg, PA 17120 Fax (802) 828-3187 [email protected] Tel. (717) 787-3391

Professionalism in Times of Disruption 1–78 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

MARK R. HERRING JOHN W. HICKENLOOPER Attorney General of the Commonwealth of Governor of the State of Colorado Virginia By: /s Jacki Cooper Melmed By: /s Matthew R. McGuire Jacki Cooper Melmed Matthew R. McGuire (pro hac vice) Special Assistant Attorney General* Acting Deputy Solicitor General Chief Legal Counsel 202 North Ninth Street 136 State Capitol Building Richmond, VA 23219 Denver, Colorado 80203 [email protected] [email protected] Tel. (804) 786-7773 Tel. (303) 866-3788 (* Limited Appointment)

Professionalism in Times of Disruption 1–79 Chapter 1—Balancing Law, Politics, and Policy in a Time of Disruption: “The New Abnormal”

Professionalism in Times of Disruption 1–80 Chapter 2 Racial Profiling and Injustice in Times of National Security: The Critical Role of Lawyers and Professionalism—Presentation Slides

Peggy Nagae Peggy Nagae Consulting Portland, Oregon Chapter 2—Racial Profiling and Injustice in Times of National Security—Presentation Slides

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P R O F I L I N G & I N J U ST I C E I N T I M E S O F " N AT I O N A L S E C U R I T Y " : THE CRITICAL ROLE OF LAWYERS AND PROFESSIONALISM

PROFESSIONALISM IN TIMES OF DISRUPTION OREGON STATE BAR December 14, 2017 Peggy A. Nagae

STATEMENT OF PROFESSIONALISM As lawyers, we belong to a profession that serves our clients and the public good.

As officers of the court, we aspire to a professional standard of conduct that goes beyond merely complying with the ethical rules.

Professionalism is the courage to care about and act for the benefit of our clients, our peers, our careers, and the public good.

…We will conduct ourselves… with the following principles: . I will work to ensure access to justice for all segments of society. . I will avoid all forms of unlawful or unethical discrimination. . I will support a diverse bench and bar. . …

Adopted by Oregon Supreme Court 2011

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MINORU YASUI

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MINORU YASUI’S JOURNEY LINE

The University Mission: Civil Growing up in Hood Ultimate of Oregon & Human River Patriotism Years Rights

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YASUI BROTHERS STORE | HOOD RIVER

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GENERAL JOHN L. DEWITT

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DEWITT’S RECOMMENDATION:

. In early 1942, DeWitt reported to President Roosevelt that no sabotage by Japanese Americans had yet been confirmed, but he commented that it only proved "a disturbing and confirming indication that such action will be taken.”

. He recommended the evacuation of all Japanese from the coastal areas of California, Oregon, and Washington state.

. President Roosevelt responded.

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EXECUTIVE ORDER 9066 | FEB. 19, 1942

President authorized and directed the Secretary of War and the military commanders whom he … designate… [to]: .Prescribe military areas … . Identify persons who may enter, remain in, or leave … .Determine any or all persons who may be excluded …

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EXECUTIVE ORDER 9066

. February 20, 1942: Henry Stimson, Secretary of War, designated DeWitt to be the Military Commander of the Western Defense Command. . Using EO 9066, DeWitt then began implementing a plan for classifying, rounding up, and removal of "undesirables." . First Order: Public Proclamation No. 3 of the Western Defense Command/Public Law No. 503, 77th Congress, and approved by the President on March 21.

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USING EO 9066: CURFEW, EXCLUSION, INCARCERATION

. General DeWitt: “…as a matter of military necessity the establishment of certain regulations…—a curfew— pertaining to all enemy aliens and all person of Japanese ancestry within said Military Areas and zones…” March 27.

. After the curfew, DeWitt would order evacuation, exclusion and finally incarceration of all persons of Japanese ancestry.

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DEWITT’S RATIONALE: ORIGINAL FINAL REPORT “A Jap’s a Jap.”

“[R]acial affinities are not severed by migration. The Japanese race is an Enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship have become ‘Americanized’ the racial strains are undiluted.”

DEWITT’S “ANALYSIS” ABOUT LOYALTY

"It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the `sheep from the goats' was unfeasible."

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YASUI: PATRIOTISM & PROFESSIONALISM

“This is the United States of America, founded in liberty, dedicated to the proposition that all men are created equal.... As an American citizen, as a lawyer, I felt that we owed at least the obligation as a citizen to tell our government they are wrong! That is the sacred duty of every citizen, because what is done to the least of us can be done to all of us. I KNEW we had to protest it.”

– Min Yasui in Never Give Up! Minoru Yasui and the Fight for Justice

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March 28, 1942

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US ATTORNEY FOR OREGON, CARL DONAUGH

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US ATTORNEY CARL C. DONAUGH | APRIL 22, 1942

.True bill brought back by grand jury on April 22, 1942

.Indictment against Yasui filed on same day in the federal District Court of Oregon

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ATTORNEYS EARL BERNARD AND JOHN COLLIER

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UNITED STATES VS. YASUI

. June 1942: waived jury trial; moved for directed verdict . Bernard and Colliers’ argument: . Yasui is a US citizen so military prohibitions are void because: . Deprives Yasui of liberty and property without due process/Fifth Amendment . Applied to American citizens of Japanese ancestry but to no other citizen of Italian or German ancestry, thereby depriving Yasui of Equal Protection

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JUDGE JAMES ALGER FEE PRESIDED

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UNITED STATES VS. YASUI | NOVEMBER 1942

Judge Fee rules: . Yasui deliberately violated Public Proclamation No. 3. . As a matter of law, military curfew unconstitutional and void as to U.S. citizens. . By working for the Japanese consulate, Yasui abdicated his US citizenship; became a citizen of Japan. . Therefore, as an “alien” of Japanese ancestry, was Yasui guilty of deliberately, willfully disobeying a lawful regulation designated by a Military Commander.

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DEWITT’S RESPONSE TO FEE’S RULING

After Judge Fee ruled that American citizens could not be detained without a proclamation of martial law.

DeWitt's stated, "All military orders and proclamations of this headquarters remain in full force and effect.”

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US ATTORNEY DONAUGH: KIWANIS CLUB LUNCH March 26 Donaugh declares: “ In time of peace the Japanese have been loyal but in time of war their sympathy is with Japan, and that is why we favor evacuation and evacuation as soon as possible.” “However friendly and kindly we feel toward our aliens, we should realize that now we are engaged in total war, a battle not only for the defense of our own country but for the defense of the whole Christian civilization.”

The Oregonian, March 26, 1942

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CITY OF PORTLAND RESOLUTION | FEBRUARY 19, 1942

Whereas… …There on the Pacific Coast of the United States many Japanese nationals and persons of Japanese descent irrespective of American citizenship, including many residents of the State of Oregon, who, under the existing circumstances, should be subject to restrictions by the United States in order that possible Fifth Column activities be minimized... …The public welfare demands the paramount importance of the safety of this Nation… …It is impossible to determine by any known process the actual loyalty of such resident Japanese nationals and persons of Japanese descent irrespective of American citizenship… …BE IT RESOLVED… to immediately intern and remove from the Coastal areas… all Japanese… irrespective of American citizenship and that the same be interned for the duration of the war and kept under proper supervision by the government of this Nation

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CITY OF PORTLAND RESOLUTION | FEBRUARY 19, 1942

NOW, THEREFORE, BE IT RESOLVED, That the Council of the City of Portland… does by this Resolution… memorialize the government of the United States through its respective agencies and departments to take appropriate steps immediately to intern and remove from the Coastal areas of the United States all Japanese nationals and persons of Japanese descent irrespective of American citizenship, that the same be interned for the duration of the war and thus kept under proper supervision by the government of this Nation…

Adopted by the Council, February 19, 1942

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ANNUAL MEETING OF OSB SEPTEMBER 3, 1942 Colonial Joel Watson, Judge Advocate, Western Defense Command, San Francisco: …it is well known to people living in the western part of this country that the Japanese population has not been assimilated into the community life. Aside from the racial differences which are a factor, but not a controlling one, the Japanese differ in marked degree from the other inhabitants in thought, tradition, culture and religion. Their cultural ties have held them more closely to the land of their ancestry than has been the case with many other national groups migrating to this country. Their mental and emotional responses are understood by but a few of our people and in general the individual Japanese presents an inscrutable personality. The question of their loyalty or their lack of loyalty to the United States… could not be determined…

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SOLICITOR GENERAL CHARLES FAHY

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YASUI VS. UNITED STATES Government argues: . Danger of espionage and sabotage by persons of Japanese ancestry justified extraordinary action . All Japanese—even US citizens—were by culture and race, predisposed to loyalty to Japan & disloyalty to US . Japanese on West Coast were likely to commit acts of espionage and sabotage . Mass action necessary because no time to determine disloyalty individually

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EDWARD J. ENNIS, JUSTICE DEPARTMENT

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EDWARD ENNIS Prepared government’s Supreme Court Briefs: . Supreme Court not aware of internal dispute between Ennis and his superior Solicitor General Fahy. . Fahy insists that Ennis exclude from briefs contradictory evidence received from J. Edgar Hoover/FBI, FCC and Office of Naval Intelligence. . Ringle report (ONI): Japanese American espionage problem had been magnified out of proportion and cases of suspected disloyalty to the American Government should be handled on an individual, not racial, basis.

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ENNIS: FBI REPORTS ARMY GETTING HYSTERICAL

Hoover cited an Oregon power outage that the military suspected was sabotage, but instead was caused by cattle scratching their backs against power lines. “Arrows of fire” that supposedly were signals also turned out to be farmers burning brush as they had done for years Ennis testified in 1985, Hirabayashi trial: “I did not believe there was any evidence authorizing the holding of US citizens.”

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ENNIS ABDICATES:

. Suggested including a footnote in the government brief in Korematsu exposing duplicity of the War Department and fraudulent nature of DeWitt’s Final Report. . Fahy refused. . In the end, Ennis signed the final government brief, even though it was stripped of the above footnote or other exculpatory evidence.

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. COMPANION CASE TO HIRABAYASHI V. UNITED STATES . SUPREME COURT RULES

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UNITED STATES SUPREME COURT | 1943-1944

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HIRABAYASHI V. U.S. | YASUI V. U.S.

Supreme Court said: Because American society had discriminated against the Japanese legally, politically and economically, they had been kept from integrating into mainstream society . Federal laws denied naturalization & prevented immigration . State law prevented land ownership and inter-marriage with Whites . Economic discrimination limited professional and employment opportunities Therefore, Japanese Americans posed a greater national security threat.

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HIRABAYASHI V. U.S. | YASUI V. U.S.

We cannot reject as unfounded the judgment of the military authorities... that there were disloyal members of that population whose numbers and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches did not have grounds for believing in a critical hour that such person could not be isolated and separately dealt with…

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YASUI V. UNITED STATES

. Supreme Court ruled that D. Court had erred in holding that Yasui had lost his US citizenship. . Also held that lower court erred in holding Public Proclamation unconstitutional as applied to US citizens. . Upheld conviction and $5,000 fine.

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KOREMATSU V. U.S. | SUPREME COURT RULES

. All legal restrictions which curtail the civil rights of a single racial group are immediately suspect under “strict scrutiny.” . Only the gravest imminent danger to public safety can justify such great deprivations. . Korematsu was not excluded from the military areas because to hostility to him or his race but because of military imperative. Therefore, case passes strict scrutiny standard, and Korematsu’s incarceration upheld as constitutional.

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JUSTICE MURPHY’S DISSENT

. “No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. [citation omitted] It is asserted merely that the loyalties of this group "were unknown and time was of the essence."

Korematsu, 323 U.S. at 241, 65 S.Ct. at 205 (Murphy, J., dissenting) (emphasis added).

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JUSTICE ROBERT H. JACKSON

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JUSTICE JACKSON’S DISSENT

“[T]he Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need.”

— Justice Jackson, dissenting 1944

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LESSON FROM THESE WWII CASES

Historian Roger Daniels wrote: …the general tendency of educated Americans… to write the evacuation off as a “wartime mistake” is to obscure its true significance. Rather than a mistake… the legal atrocity which was committed against Japanese Americans was the logical outgrowth of over three centuries of American experience, an experience which taught Americans to regard the United States as a White man’s country…”

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CORAM NOBIS PETITIONERS

Early 1983

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KOREMATSU V. UNITED STATES

Judge Marilyn Hall Patel held: Korematsu stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.

November 1983

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MINORU YASUI V. UNITED STATES

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YASUI’S CORAM NOBIS CASE

. Federal District Court of Oregon, January 16, 1984.

. Judge Robert C. Belloni presiding.

. Government argued that since it agreed that Yasui’s conviction should be vacated, there was no need for legal and factual findings.

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YASUI’S CORAM NOBIS CASE (CONT.) Petitioner argued: court has duty to protect the public interest by examining the constitutional aspects of petition.

We asked for specific findings: . There was no military necessity for the curfew, exclusion and internment; . One of the principals involved was racist and decisions based on racism; . Government knew about and withheld evidence refuting military necessity; and . There was a lack of political leadership in the United States during this time.

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YASUI’S CORAM NOBIS CASE (CONT.)

Judge Belloni vacated conviction but agrees with the government about no evidentiary hearing:

.“I decline to make such findings forty years after the events took place.” .“ There is no case nor controversy since both sides are asking for the same relief only for different reasons.” .“The Petitioner would have the court engage in fact finding which would have no legal consequences. Courts should not engage in that kind of activity.”

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HIRABAYASHI VS. UNITED STATES

. Trial before Judge Robert Voorhees (W. District of WA.) . Edward Ennis’ testimony provided evidence supporting Hirabayashi’s claim of governmental misconduct. . Court held that Hirabayashi's conviction for violating the exclusion order resulted in a violation of due process and ordered it vacated . . Court held as a matter of law that the curfew conviction should not be vacated. . Hirabayashi appeals to the Ninth Circuit.

February 1985

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HIRABAYASHI NINTH CIRCUIT DECISION

Judge Mary M. Schroeder: .Found for Hirabayashi on both counts; vacated both convictions. .She later commented: “I have written hundreds of judicial opinions, but I think Hirabayashi is the only one I ever wrote that I was sure from the beginning was absolutely right— legally, intellectually, and morally.” . She also noted: U.S. Supreme Court’s decisions in Hirabayashi, Yasui and Korematsu cases represent extreme illustrations of the US Supreme Court demonstrating a lack of courage.

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POST 9/11, CURRENT ERA OF TERROR

. Judge Belloni’s ruling could not have been more erroneous. . Scapegoating and violence is occurring like the Japanese American had experienced. . Hate crimes against Middle Eastern Americans, South Asian Americans, Muslim Americans, and Muslims.

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YASUI, HIRABAYASHI & KOREMATSU AMICUS BRIEFS

Turkman v. Ashcroft (2007): . Muslims, South Asian and Arab non-citizens swept up by FBI in racial profiling dragnet following September 11. Hedges v. Obama (2012): . Challenging the National Defense and Authorization Act, allowing for indefinite detention of those suspected of supporting forces engaged in hostilities to US. Hassan, et. al. v. City of New York (2014): . NYPD surveillance and infiltration program targeting Muslim communities.

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ACTING SOLICITOR GENERAL NEAL KATYAL

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ASG NEAL KATYAL

. In 2011 Neal Katyal stated: .Office of Solicitor General Fahy committed an error by perpetuating the government’s misleading case before the Supreme Court in the Yasui, Hirabayashi and Korematsu cases. .“…. the Solicitor General did not inform the Court of the [ONI] report, despite warnings from Department of Justice attorneys that failing to alert the Court ‘might approximate the suppression of evidence.’ Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones.”

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ASG NEAL KATYAL

“Today, our Office[of Solicitor General] takes this history as an important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court. Only then can we fulfill our responsibility to defend the United States and its Constitution, and to protect the rights of all Americans.”

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2015 PRESIDENTIAL MEDAL OF FREEDOM

The Presidential Medal of Freedom, the highest civilian honor in the nation, is presented to “individuals who have made especially meritorious contributions to the security or national interests of the United States, to world peace, or to cultural or other significant public or private endeavors.”

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SENATOR MAZIE HIRONO

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2015 PRESIDENTIAL MEDAL OF FREEDOM

. MYT Committee worked with U.S. Sen. Mazie Hirono to nominate Yasui for the PMF. Our submission included: . 115 elected officials, national, state and regional organizations, and notable individuals—including two cabinet officials; nine U.S. Senators and 26 House of Representatives from 11 states; governors, state attorneys general, mayors, and state legislators. . Dozens of national civil rights organizations: National Urban League, ACLU, NAACP, National Council of La Raza, JACL, American Friends Service Committee, the Leadership Conference for Civil and Human Rights, the American Jewish Committee, etc. . 46 local, regional and state organizations and individuals.

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PRESIDENT BARACK OBAMA

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2015 PRESIDENTIAL MEDAL OF FREEDOM

As he awarded a posthumous Medal of Freedom to Minoru Yasu, President Barak Obama said:

“Today Min’s legacy has never been more important. It is a call to our national conscience, a reminder of our enduring obligation to be the land of the free and the home of the brave, an America worthy of his sacrifices.”

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OREGON HB 4009: MARCH 28 MINORU YASUI DAY

. 2016: .February 1: Passed unanimously by the House Rural Communities, Land Use and Water .February 4: Passed unanimously by House: 56/0 .February 18: Passed unanimously by the Senate Rules Committee .February 24: Passed unanimously by the Senate: 29/0 .March28: Signed by Governor Kate Brown

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GOVERNOR KATE BROWN

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GOV. BROWN’S 2017 INAUGURAL SPEECH

. “But for me, and I suspect for Senator Chuck Thomsen and Representative Mark Johnson, one of the most memorable days of that session was the day when we passed legislation forever proclaiming March 28 as Minoru Yasui Day in Oregon.”

. Talked about Yasui’s journey to justice and his courageous belief in the constitution, the courts and the legal profession.

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TODAY IN THIS ERA OF TERROR

. “Just as Asian Americans have been ‘raced’ as foreign and from there as presumptively disloyal, Arab Americans and Muslims have been “raced” as ‘terrorists’: foreign, disloyal, and imminently threatening.” (Law Professor Natsu Saito, May 2001.) . President’s Executive Orders on Travel Bans from majority Muslim countries, starting in January 2017. . Filed amicus briefs on behalf of the Holly Yasui, Jay Hirabayashi, and Karen Korematsu, the children of Min Yasui, Gordon Hirabayashi and Fred Korematsu.

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YASUI’S COMMITMENT TO CIVIL & HUMAN RIGHTS

. "If we believe in America, if we believe in equality and democracy, if we believe in law and justice, then each of us, when we see or believe errors are being made, has an obligation to make every effort to correct them.” . Question for you: What about your patriotism and professionalism?

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IN THIS CURRENT ERA OF TERROR

. Political education and mobilization . At the front end, when laws are passed and enforced . At the back end when they are challenged in the courts . During World War II, at the front end, no one spoke against it . Not the ACLU . Not the NAACP . Not even the JACL . Back end: 40+ years later, Coram Nobis teams took a different tack . Engaged in multifaceted legal-political strategy . Litigation, communication organizing, public education, media storytelling and scholarly writing

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IN THIS CURRENT ERA OF TERROR

. Civil rights and community groups and concerned individuals join the struggle in the courts, Congress, and President’s office, schools, churches, union halls community centers, etc. . Speak out so that national security does not overwhelm the civil liberties of vulnerable groups . Mobilize and raise challenges to Executive Orders that violate constitutional rights: Travel Ban, etc. . Taking Justice Jackson’s words It is time to turn Justice Jackson’s warning into an affirmative challenge: it is time to unload that weapon

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COURTS’ RESPONSE DURING TIMES OF NATIONAL DISTRESS

. Although Constitution protects civil liberties of all in America . Although the US courts are the protection against violations of the Bill of Rights . Although there are explicit Constitutional guarantees of due process and equal protection . In times of national distress, Courts . Are influenced by popular politics . Subtly renounce their role as constitutional bulwark . Defer to executive and legislative branches

PEGGY NAGAE 77

COURTS’ RESPONSE DURING TIMES OF NATIONAL DISTRESS

. Courts do this by: . Taking a “hands-off” approach to reviewing governmental national security actions . Even where fundamental liberties are restricted . Legitimize rather than check the actions of the other two branches of government . Not holding the executive and legislative branches accountable for military or national security actions

PEGGY NAGAE 78

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POST CORAM NOBIS DECISIONS

In 1989, Chief Justice Rehnquist, ignoring the stark revelations of the coram nobis cases, defended the internment as legally justified, at least as to first generation Japanese Americans.

.Judiciary should defer to executive branch and military in times of war.

.Harsh treatment of civilians in the US on the basis of ancestry is valid, even in the absence of martial law.

PEGGY NAGAE 79

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Professionalism in Times of Disruption 2–41 Chapter 2—Racial Profiling and Injustice in Times of National Security—Presentation Slides

Professionalism in Times of Disruption 2–42 Chapter 3 Marley and the Judge: Professionalism in the Age of Disruption—Presentation Slides

Professor Steve Johansen Lewis & Clark Law School Portland, Oregon Chapter 3—Marley and the Judge: Professionalism in the Age of Disruption—Presentation Slides

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Marley and the Judge: Professionalism in the Age of Disruption

Prof. Steve Johansen Lewis and Clark Law School

“Shut up for a moment if you don’t mind.” Judge William Walls to Raymond Brown, attorney for Sen. Robert Menendez.

“I think you should take a f***ing break” Lawyer at deposition shortly before throwing a cup of coffee at opposing counsel.

“We need quick justice and we need strong justice…[b]ecause what we have right now is a joke and it’s a laughingstock.” Donald Trump, President of the United States

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If…I ever joined an opinion for the Court that began: ‘‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’’ I would hide my head in a bag. Obergefell v. Hodges, 135 S.Ct 2584, 2630 (2015)(Scalia, J. dissenting).

Scalia: My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents to?

Interviewer: Law students.

Scalia: Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.

Senior, J. (2013). In Conversation: Antonin Scalia. New York Magazine. [online] Available at: http://nymag.com/news/features/antonin -scalia-2013-10/ .

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q “The ostrich is a noble animal, but not a proper model for an appellate advocate” Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011)(Posner, J.)

Gallop: How much confidence do you have in the U.S. Supreme Court?

Great deal/quite a lot Very little/none 1985 56% 10%

2016 32% 25%

Source: http://news.gallup.com/poll/4732/supreme-court.aspx

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U.S. Supreme Court opinions

Total dissents: Pre-Scalia 1972-83 63% Scalia era 1987-2015 57%

5/4 decisions: Pre-Scalia 1972-83 18% Scalia era 1987-2015 21%

Source: Supreme Court Database, Washington University Law http://supremecourtdatabase.org/analysisOverview.php

The conflict paradox

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Stephen Easton’s plan for ending most discovery fights:

1. For parties seeking discovery: Be reasonable in what you request.

2. For parties responding to discovery requests: Give it to them.

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The future of the legal profession

Marley’s lesson…

“I wear the chain I forged in life,” replied the Ghost. “I made it link by link, and yard by yard; I girded it on of my own free will, and of my own free will I wore it.”

Charles Dickens, A Christmas Tale

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Professionalism in Times of Disruption 3–8 Chapter 4 Reflecting on and Responding to the Changing Landscape

Moderator: Daniel Santos Willamette University College of Law Salem, Oregon

Jennifer Espinola Dean of Students University of Oregon School of Law Eugene, Oregon

Julia Hagan Gevurtz Menashe Larson & Howe PC Portland, Oregon

Thomas Tongue Dunn Carney Allen Higgins & Tongue LLP Portland, Oregon

Contents Oregon Rules of Professional Conduct (as Amended Effective January 1, 2017) ...... 4–1 Oregon State Bar Statement of Professionalism ...... 4–37 Multnomah Bar Association Commitment to Professionalism ...... 4–39 American College of Trial Lawyers Code of Pretrial and Trial Conduct 4–41 Taking the High Road: How to Deal Ethically with Bullies Who Don’t Play by the Rules . . . .4–61 A Matter of Integrity: Civility and Political Discourse 4–79 Chapter 4—Reflecting on and Responding to the Changing Landscape

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OREGON RULES OF PROFESSIONAL CONDUCT (as amended effective January 1, 2017) CONTENTS

RULE 1.0 TERMINOLOGY ...... 2 LAW FIRMS AND ASSOCIATIONS ...... 26 CLIENT-LAWYER RELATIONSHIP ...... 3 RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND RULE 1.1 COMPETENCE ...... 3 SUPERVISORY LAWYERS ...... 26 RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER ...... 26 AUTHORITY BETWEEN CLIENT AND LAWYER ...... 3 RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANCE .. 26 RULE 1.3 DILIGENCE ...... 4 RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER ...... 27 RULE 1.4 COMMUNICATION ...... 4 RULE 5.5 UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL RULE 1.5 FEES ...... 4 PRACTICE ...... 28 RULE 1.6 CONFIDENTIALITY OF INFORMATION ...... 5 RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE ...... 29 RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS ...... 6 RULE 5.7 [RESERVED] ...... 29 RULE 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES . 7 PUBLIC SERVICE ...... 29 RULE 1.9 DUTIES TO FORMER CLIENTS ...... 9 RULE 6.1 [RESERVED] ...... 29 RULE 1.10 IMPUTATION OF CONFLICTS OF INTEREST; SCREENING .... 10 RULE 6.2 [RESERVED] ...... 29 RULE 1.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND RULE 6.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATION ...... 29 CURRENTGOVERNMENT OFFICERS AND EMPLOYEES ...... 10 RULE 6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS .... 29 RULE 1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER RULE 6.5 NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES THIRD-PARTY NEUTRAL ...... 12 PROGRAMS ...... 29 RULE 1.13 ORGANIZATION AS CLIENT ...... 13 INFORMATION ABOUT LEGAL SERVICES...... 30 RULE 1.14 CLIENT WITH DIMINISHED CAPACITY ...... 14 RULE 7.1 COMMUNICATION CONCERNING A LAWYER'S SERVICES .... 30 RULE 1.15-1 SAFEKEEPING PROPERTY ...... 14 RULE 7.2 ADVERTISING ...... 30 RULE 1.15-2 IOLTA ACCOUNTS AND TRUST ACCOUNT OVERDRAFT RULE 7.3 SOLICITATION OF CLIENTS ...... 30 NOTIFICATION ...... 15 RULE 7.4 [RESERVED] ...... 31 RULE 1.16 DECLINING OR TERMINATING REPRESENTATION...... 17 RULE 7.5 FIRM NAMES AND LETTERHEADS ...... 31 RULE 1.17 SALE OF LAW PRACTICE ...... 18 RULE 7.6 [RESERVED] ...... 32 RULE 1.18 DUTIES TO PROSPECTIVE CLIENT ...... 18 MAINTAINING THE INTEGRITY OF THE PROFESSION ...... 32 COUNSELOR ...... 19 RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS ...... 32 RULE 2.1 ADVISOR ...... 19 RULE 8.2 JUDICIAL AND LEGAL OFFICIALS ...... 32 RULE 2.2 [RESERVED] ...... 19 RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT ...... 32 RULE 2.3 EVALUATION FOR USE BY THIRD PERSONS ...... 19 RULE 8.4 MISCONDUCT ...... 33 RULE 2.4 LAWYER SERVING AS MEDIATOR ...... 20 RULE 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW...... 34 ADVOCATE ...... 20 RULE 8.6 WRITTEN ADVISORY OPINIONS ON PROFESSIONAL RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS ...... 20 CONDUCT; CONSIDERATION GIVEN IN DISCIPLINARY RULE 3.2 [RESERVED] ...... 20 PROCEEDINGS ...... 34 RULE 3.3 CANDOR TOWARD THE TRIBUNAL ...... 20 RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL ...... 21 RULE 3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL ...... 22 RULE 3.6 TRIAL PUBLICITY ...... 23 RULE 3.7 LAWYER AS WITNESS ...... 23 RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR ...... 24 RULE 3.9 ADVOCATE IN NONADJUDICATIVE PROCEEDINGS ...... 24 TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS ...... 24 RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS ...... 24 RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL ...... 25 RULE 4.3 DEALING WITH UNREPRESENTED PERSONS ...... 25 RULE 4.4 RESPECT FOR THE RIGHTS OF THIRD PERSONS; INADVERTENTLY SENT DOCUMENTS ...... 25

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RULE 1.0 TERMINOLOGY the writing shall reflect a recommendation that the client seek independent legal advice to determine if (a) "Belief" or "believes" denotes that the person consent should be given. involved actually supposes the fact in question to be true. A person's belief may be inferred from (h) "Knowingly," "known," or "knows" denotes actual circumstances. knowledge of the fact in question, except that for purposes of determining a lawyer's knowledge of the (b) "Confirmed in writing," when used in reference to existence of a conflict of interest, all facts which the the informed consent of a person, denotes informed lawyer knew, or by the exercise of reasonable care consent that is given in writing by the person or a should have known, will be attributed to the lawyer. A writing that a lawyer promptly transmits to the person person's knowledge may be inferred from confirming an oral informed consent. See paragraph (g) circumstances. for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the (i) "Matter" includes any judicial or other proceeding, person gives informed consent, then the lawyer must application, request for a ruling or other determination, obtain or transmit it within a reasonable time contract, claim, controversy, investigation, charge, thereafter. accusation, arrest or other particular matter involving a specific party or parties; and any other matter covered (c) "Electronic communication" includes but is not by the conflict of interest rules of a government agency. limited to messages sent to newsgroups, listservs and bulletin boards; messages sent via electronic mail; and (j) "Partner" denotes a member of a partnership, a real time interactive communications such as shareholder in a law firm organized as a professional conversations in internet chat groups and conference corporation, or a member of an association authorized areas and video conferencing. to practice law. (d) "Firm" or "law firm" denotes a lawyer or lawyers, (k)"Reasonable" or "reasonably" when used in relation including “Of Counsel” lawyers, in a law partnership, to conduct by a lawyer denotes the conduct of a professional corporation, sole proprietorship or other reasonably prudent and competent lawyer. association authorized to practice law; or lawyers (l) "Reasonable belief" or "reasonably believes" when employed in a private or public legal aid or public used in reference to a lawyer denotes that the lawyer defender organization, a legal services organization or believes the matter in question and that the the legal department of a corporation or other public or circumstances are such that the belief is reasonable. private organization. Any other lawyer, including an office sharer or a lawyer working for or with a firm on a (m) "Reasonably should know" when used in reference limited basis, is not a member of a firm absent indicia to a lawyer denotes that a lawyer of reasonable sufficient to establish a de facto law firm among the prudence and competence would ascertain the matter lawyers involved. in question. (e) "Fraud" or "fraudulent" denotes conduct that is (n) “Screened” denotes the isolation of a lawyer from fraudulent under the substantive or procedural law of any participation in a matter through the timely the applicable jurisdiction and has a purpose to deceive. imposition of procedures within a firm that are reasonably adequate under the circumstances to (f) “Information relating to the representation of a protect information that the isolated lawyer is obligated client” denotes both information protected by the to protect under these Rules or other law. attorney-client privilege under applicable law, and other information gained in a current or former (o) "Substantial" when used in reference to degree or professional relationship that the client has requested extent denotes a material matter of clear and weighty be held inviolate or the disclosure of which would be importance. embarrassing or would be likely to be detrimental to (p) "Tribunal" denotes a court, an arbitrator in a binding the client. arbitration proceeding or a legislative body, (g) "Informed consent" denotes the agreement by a administrative agency or other body acting in an person to a proposed course of conduct after the lawyer adjudicative capacity. A legislative body, administrative has communicated adequate information and agency or other body acts in an adjudicative capacity explanation about the material risks of and reasonably when a neutral official, after the presentation of available alternatives to the proposed course of evidence or legal argument by a party or parties, will conduct. When informed consent is required by these render a binding legal judgment directly affecting a Rules to be confirmed in writing or to be given in a party's interests in a particular matter. writing signed by the client, the lawyer shall give and

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(q) "Writing" or "written" denotes a tangible or CLIENT-LAWYER RELATIONSHIP electronic record of a communication or representation, including handwriting, typewriting, printing, RULE 1.1 COMPETENCE photostatting, photography, audio or videorecording A lawyer shall provide competent representation to a and electronic communications. A "signed" writing client. Competent representation requires the legal includes an electronic sound, symbol or process knowledge, skill, thoroughness and preparation attached to or logically associated with a writing and reasonably necessary for the representation. executed or adopted by a person with the intent to sign the writing. Adopted 01/01/05 Adopted 01/01/05 Defined Terms (see Rule 1.0): Amended 01/01/14: “Electronic communications” “Reasonably” substituted for “email.” Comparison to Oregon Code Comparison to Oregon Code This rule is identical to DR 6-101(A). This rule replaces DR 10-101 and is significantly more Comparison to ABA Model Rule expansive. Some DR 10-101 definitions were retained, but others were not incorporated into this rule. This is the ABA Model Rule. The definition of “firm member” was eliminated as not RULE 1.2 SCOPE OF REPRESENTATION AND necessary, but a reference to “of counsel” was retained ALLOCATION OF AUTHORITY BETWEEN CLIENT AND in the definition of “firm.” The definition of “firm” also LAWYER distinguishes office sharers and lawyers working in a firm on a limited basis. (a) Subject to paragraphs (b) and (c), a lawyer shall abide by a client's decisions concerning the objectives The concept of “full disclosure” is replaced by “informed of representation and, as required by Rule 1.4, shall consent,” which, in some cases, must be “confirmed in consult with the client as to the means by which they writing.” are to be pursued. A lawyer may take such action on The definition of “professional legal corporation” was behalf of the client as is impliedly authorized to carry deleted, as the term does not appear in any of the rules out the representation. A lawyer shall abide by a and does not require explanation. client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's The definitions of “person” and “state” were also decision, after consultation with the lawyer, as to a plea eliminated as being unnecessary. to be entered, whether to waive jury trial and whether Comparison to ABA Model Rule the client will testify. The Model Rules do not define “information relating to (b) A lawyer may limit the scope of the representation if the representation of a client;” it was added here to the limitation is reasonable under the circumstances make it clear that ORPC 1.6 continues to protection of and the client gives informed consent. the same information protected by DR 4-101 and the (c) A lawyer shall not counsel a client to engage, or term is defined with the DR definitions of confidences assist a client, in conduct that the lawyer knows is and secrets. The MR definition of “firm” was revised to illegal or fraudulent, but a lawyer may discuss the legal include a reference to “of counsel” lawyers. The MR consequences of any proposed course of conduct with a definition of “knowingly, known or knows” was revised client and may counsel or assist a client to make a good to include language from DR 5-105(B) regarding faith effort to determine the validity, scope, meaning or knowledge of the existence of a conflict of interest. The application of the law. definition of “matter” was moved to this rule from MR 1.11 on the belief that it has a broader application than (d) Notwithstanding paragraph (c), a lawyer may to only former government lawyer conflicts. The MR counsel and assist a client regarding Oregon’s definition of “writing” has been expanded to include marijuana-related laws. In the event Oregon law “facsimile” communications. conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy. Adopted 01/01/05 Amended 02/XX/15: Paragraph (d) added Defined Terms (see Rule 1.0):

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“Fraudulent” Defined Terms (see Rule 1.0): “Informed consent” “Knows” “Knows” “Reasonable” “Matter” “Reasonably” “Reasonable” Comparison to Oregon Code Comparison to Oregon Code This rule has no counterpart in the Oregon Code, This rule has no real counterpart in the Oregon Code. although the duty to communicate with a client may be Subsection (a) is similar to DR 7-101(A) and (B), but inferred from other rules and from the law of agency. expresses more clearly that lawyers must defer to the client’s decisions about the objectives of the Comparison to ABA Model Rule representation and whether to settle a matter. This is the former ABA Model Rule. ABA MR 1.4 as Subsection (b) is a clarification of the lawyer’s right to amended in 2002 incorporates provisions previously limit the scope of a representation. Subsection (c) is found in MR 1.2; it also specifically identifies five aspects similar to DR 7-102(A)(7), but recognizes that counseling of the duty to communicate. a client about the meaning of a law or the consequences of proposed illegal or fraudulent conduct is not the same RULE 1.5 FEES as assisting the client in such conduct. Paragraph (d) had no counterpart in the Oregon Code. (a) A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee or a Comparison to ABA Model Rule clearly excessive amount for expenses. ABA Model Rule 1.2(b) states that a lawyer’s (b) A fee is clearly excessive when, after a review of the representation of a client “does not constitute an facts, a lawyer of ordinary prudence would be left with endorsement of the client’s political, economic, social or a definite and firm conviction that the fee is in excess moral views or activities.” It was omitted because it is of a reasonable fee. Factors to be considered as guides not a rule of discipline, but rather a statement intended in determining the reasonableness of a fee include the to encourage lawyers to represent unpopular clients. following: Also, MR 1.2(c) refers to “criminal” rather than “illegal” (1) the time and labor required, the novelty and conduct. difficulty of the questions involved, and the skill requisite to perform the legal service properly; RULE 1.3 DILIGENCE (2) the likelihood, if apparent to the client, that the A lawyer shall not neglect a legal matter entrusted to acceptance of the particular employment will the lawyer. preclude other employment by the lawyer; Adopted 01/01/05 (3) the fee customarily charged in the locality for Defined Terms (see Rule 1.0) similar legal services; “Matter” (4) the amount involved and the results obtained; Comparison to Oregon Code (5) the time limitations imposed by the client or by the circumstances; This rule is identical to DR 6-101(B). (6) the nature and length of the professional Comparison to ABA Model Rule relationship with the client; The ABA Mode Rule requires a lawyer to “act with (7) the experience, reputation, and ability of the reasonable diligence and promptness in representing a lawyer or lawyers performing the services; and client.” (8) whether the fee is fixed or contingent. RULE 1.4 COMMUNICATION (c) A lawyer shall not enter into an arrangement for, (a) A lawyer shall keep a client reasonably informed charge or collect: about the status of a matter and promptly comply with (1) any fee in a domestic relations matter, the reasonable requests for information payment or amount of which is contingent upon (b) A lawyer shall explain a matter to the extent the securing of a divorce or upon the amount of reasonably necessary to permit the client to make spousal or child support or a property settlement; informed decisions regarding the representation. Adopted 01/01/05

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(2) a contingent fee for representing a defendant in determined and the expenses for which the client will be a criminal case; or responsible. It also requires a written statement showing distribution of all funds recovered. Paragraph (c)(3) has (3) a fee denominated as "earned on receipt," no counterpart in the Model Rule. Model Rule 1.5(e) "nonrefundable" or in similar terms unless it is permits a division of fees between lawyers only if it is pursuant to a written agreement signed by the proportional to the services performed by each lawyer or client which explains that: if the lawyers assume joint responsibility for the (i) the funds will not be deposited into the lawyer representation. trust account, and RULE 1.6 CONFIDENTIALITY OF INFORMATION (ii) the client may discharge the lawyer at any time and in that event may be entitled to a refund of all (a) A lawyer shall not reveal information relating to the or part of the fee if the services for which the fee representation of a client unless the client gives was paid are not completed. informed consent, the disclosure is impliedly authorized in order to carry out the representation or the (d) A division of a fee between lawyers who are not in disclosure is permitted by paragraph (b). the same firm may be made only if: (b) A lawyer may reveal information relating to the (1) the client gives informed consent to the fact representation of a client to the extent the lawyer that there will be a division of fees, and reasonably believes necessary: (2) the total fee of the lawyers for all legal services (1) to disclose the intention of the lawyer's client to they rendered the client is not clearly excessive. commit a crime and the information necessary to (e) Paragraph (d) does not prohibit payments to a prevent the crime; former firm member pursuant to a separation or (2) to prevent reasonably certain death or retirement agreement, or payments to a selling lawyer substantial bodily harm; for the sale of a law practice pursuant to Rule 1.17. (3) to secure legal advice about the lawyer's Adopted 01/01/05 compliance with these Rules; Amended 12/01/10: Paragraph(c)(3) added. (4) to establish a claim or defense on behalf of the Defined Terms (see Rule 1.0): lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal “Firm” charge or civil claim against the lawyer based upon “Informed Consent” conduct in which the client was involved, or to “Matter” respond to allegations in any proceeding “Reasonable” concerning the lawyer's representation of the Comparison to Oregon Code client; Paragraphs (a), (b) and (c)(1) and (2) are taken directly (5) to comply with other law, court order, or as from DR 2-106, except that paragraph (a) is amended to permitted by these Rules; or include the Model Rule prohibition against charging a (6) in connection with the sale of a law practice “clearly excessive amount for expenses.” Paragraph (c)(3) under Rule 1.17 or to detect and resolve conflicts of had no counterpart in the Code. Paragraph (d) retains interest arising from the lawyer’s change of the substantive obligations of DR 2-107(A) but is employment or from changes in the composition or rewritten to accommodate the new concepts of ownership of a firm. In those circumstances, a “informed consent” and “clearly excessive.” Paragraph lawyer may disclose with respect to each affected (e) is essentially identical to DR 2-107(B). client the client's identity. the identities of any Comparison to ABA Model Rule adverse parties, the nature and extent of the legal services involved, and fee and payment ABA Model Rule 1.5(b) requires that the scope of the information, but only if the information revealed representation and the basis or rate of the fees or would not compromise the attorney-client privilege expenses for which the client will be responsible be or otherwise prejudice any of the clients. The communicated to the client before or within a lawyer or lawyers receiving the information shall reasonable time after the representation commences, have the same responsibilities as the disclosing “preferably in writing.” Model Rule 1.5(c) sets forth lawyer to preserve the information regardless of specific requirements for a contingent fee agreement, the outcome of the contemplated transaction. including an explanation of how the fee will be

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(7) to comply with the terms of a diversion obtain legal advice about compliance with the Rules of agreement, probation, conditional reinstatement or Professional Conduct. conditional admission pursuant to BR 2.10, BR Paragraph (b)(6) in the Oregon Code pertained only to 6.2, BR 8.7or Rule for Admission Rule 6.15. A lawyer the sale of a law practice. serving as a monitor of another lawyer on diversion, probation, conditional reinstatement or Paragraph (b)(7) had no counterpart in the Oregon Code. conditional admission shall have the same Comparison to ABA Model Rule responsibilities as the monitored lawyer to preserve information relating to the representation ABA Model Rule 1.6(b) allows disclosure “to prevent of the monitored lawyer’s clients, except to the reasonably certain death or substantial bodily harm” extent reasonably necessary to carry out the regardless of whether a crime is involved. It also allows monitoring lawyer’s responsibilities under the disclosure to prevent the client from committing a crime terms of the diversion, probation, conditional or fraud that will result in significant financial injury or to reinstatement or conditional admission and in any rectify such conduct in which the lawyer’s services have proceeding relating thereto. been used. There is no counterpart in the Model Rule for information to monitoring responsibilities. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS of, or unauthorized access to, information relating to the representation of a client. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a Adopted 01/01/05 current conflict of interest. A current conflict of interest Amended 12/01/06: Paragraph (b)(6) amended to exists if: substitute “information relating to the representation of (1) the representation of one client will be directly a client” for “confidences and secrets.” adverse to another client; Amended 01/20/09: Paragraph (b)(7) added. (2) there is a significant risk that the representation Amended 01/01/14: Paragraph (6) modified to allow of one or more clients will be materially limited by certain disclosures to avoid conflicts arising from a the lawyer's responsibilities to another client, a change of employment or ownership of a firm. Paragraph former client or a third person or by a personal (c) added. interest of the lawyer; or Defined Terms (see Rule 1.0): (3) the lawyer is related to another lawyer, as parent, child, sibling, spouse or domestic partner, in “Believes” a matter adverse to a person whom the lawyer “Firm” knows is represented by the other lawyer in the “Information relating to the representation of a client” same matter. “Informed Consent” “Reasonable” (b) Notwithstanding the existence of a current conflict “Reasonably” of interest under paragraph (a), a lawyer may represent “Substantial” a client if: Comparison to Oregon Code (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent This rule replaces DR 4-101(A) through (C). The most representation to each affected client; significant difference is the substitution of “information relating to the representation of a client” for (2) the representation is not prohibited by law; “confidences and secrets.” Paragraph (a) includes the (3) the representation does not obligate the lawyer exceptions for client consent found in DR 4-101(C)(1) and to contend for something on behalf of one client allows disclosures “impliedly authorized” to carry out the that the lawyer has a duty to oppose on behalf of representation, which is similar to the exception in DR 4- another client; and 101(C)(2). (4) each affected client gives informed consent, The exceptions to the duty of confidentiality set forth in confirmed in writing. paragraph (b) incorporate those found in DR 4-101(C)(2) through (C)(5). There are also two new exceptions not Adopted 01/01/05 found in the Oregon Code: disclosures to prevent Defined Terms (see Rule 1.0): “reasonably certain death or substantial bodily harm” whether or not the action is a crime, and disclosures to “Believes”

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“Confirmed in writing” (2) the client is advised in writing of the desirability “Informed consent” of seeking and is given a reasonable opportunity to “Knows” seek the advice of independent legal counsel on the “Matter” transaction; and “Reasonably believes” (3) the client gives informed consent, in a writing Comparison to Oregon Code signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, The current conflicts of interest prohibited in paragraph including whether the lawyer is representing the (a) are the self-interest conflicts currently prohibited by client in the transaction. DR 5-101(A) and current client conflicts prohibited by DR 5-105(E). Paragraph (a)(2) refers only to a “personal (b) A lawyer shall not use information relating to interest” of a lawyer, rather than the specific “financial, representation of a client to the disadvantage of the business, property or personal interests” enumerated in client unless the client gives informed consent, DR 5-101(A)(1). Paragraph (a)(3) incorporates the “family confirmed in writing, except as permitted or required conflicts” from DR 5-101(A)(2). under these Rules. Paragraph (b) parallels DR 5-101(A) and DR 5-105(F) in (c) A lawyer shall not solicit any substantial gift from a permitting a representation otherwise prohibited if the client, including a testamentary gift, or prepare on affected clients give informed consent, which must be behalf of a client an instrument giving the lawyer or a confirmed in writing. Paragraph (b)(3) incorporates the person related to the lawyer any substantial gift, unless “actual conflict” definition of DR 5-105(A)(1) to make it the lawyer or other recipient of the gift is related to the clear that that a lawyer cannot provide competent and client. For purposes of this paragraph, related persons diligent representation to clients in that situation. include a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or individual with Paragraph (b) also allows consent to simultaneous whom the lawyer or the client maintains a close familial representation “not prohibited by law,” which has no relationship. counterpart in the Oregon Code. According to the official Comment to MR 1.7 this would apply, for instance, in (d) Prior to the conclusion of representation of a client, jurisdictions that prohibit a lawyer from representing a lawyer shall not make or negotiate an agreement more than one defendant in a capital case, to certain giving the lawyer literary or media rights to a portrayal representations by former government lawyers, or when or account based in substantial part on information local law prohibits a government client from consenting relating to the representation. to a conflict of interest. (e) A lawyer shall not provide financial assistance to a Comparison to ABA Model Rule client in connection with pending or contemplated litigation, except that: This is essentially identical to the ABA Model Rule, except for the addition of paragraphs (a)(3) and (b)(3) discussed (1) a lawyer may advance court costs and expenses of above; also, the Model Rule uses the term “concurrent” litigation, the repayment of which may be contingent rather than “current.” The Model Rule allows the clients on the outcome of the matter; and to consent to a concurrent conflict if “the representation (2) a lawyer representing an indigent client may pay does not involve the assertion of a claim by one client court costs and expenses of litigation on behalf of the against another client represented by the lawyer in the client. same litigation or other proceeding before a tribunal.” (f) A lawyer shall not accept compensation for RULE 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: representing a client from one other than the client SPECIFIC RULES unless: (a) A lawyer shall not enter into a business transaction (1) the client gives informed consent; with a client or knowingly acquire an ownership, (2) there is no interference with the lawyer's possessory, security or other pecuniary interest adverse independence of professional judgment or with the to a client unless: client-lawyer relationship; and (1) the transaction and terms on which the lawyer (3) information related to the representation of a acquires the interest are fair and reasonable to the client is protected as required by Rule 1.6. client and are fully disclosed and transmitted in writing in a manner that can be reasonably (g) A lawyer who represents two or more clients shall understood by the client; not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case

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an aggregate agreement as to guilty or nolo contendere (k) While lawyers are associated in a firm, a prohibition pleas, unless each client gives informed consent, in a in the foregoing paragraphs (a) through (i) that applies writing signed by the client. The lawyer's disclosure to any one of them shall apply to all of them. shall include the existence and nature of all the claims Adopted 01/01/05 or pleas involved and of the participation of each person in the settlement. Amended 01/01/13: Paragraph (e) amended to mirror ABA Model Rule 1.8(e). (h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless Defined Terms (see Rule 1.0): the client is independently represented in making “Confirmed in writing” the agreement; “Information relating to the representation of a client” (2) settle a claim or potential claim for such liability “Informed consent” with an unrepresented client or former client “Firm” unless that person is advised in writing of the “Knowingly” desirability of seeking and is given a reasonable “Matter” opportunity to seek the advice of independent legal “Reasonable” counsel in connection therewith; “Reasonably” “Substantial” (3) enter into any agreement with a client regarding “Writing” arbitration of malpractice claims without informed consent, in a writing signed by the client; or Comparison to Oregon Code (4) enter into an agreement with a client or former This rule has no exact counterpart in the Oregon Code, client limiting or purporting to limit the right of the although it incorporates prohibitions found in several client or former client to file or to pursue any separate disciplinary rules. complaint before the Oregon State Bar. Paragraph (a) replaces DR 5-104(A) and incorporates the (i) A lawyer shall not acquire a proprietary interest in Model Rule prohibition against business transactions the cause of action or subject matter of litigation the with clients even with consent except where the lawyer is conducting for a client, except that the lawyer transaction is “fair and reasonable” to the client. It also may: includes an express requirement to disclose the lawyer’s role and whether the lawyer is representing the client in (1) acquire a lien authorized by law to secure the the transaction. lawyer's fee or expenses; and Paragraph (b) is virtually identical to DR 4-101(B). (2) contract with a client for a reasonable contingent fee in a civil case. Paragraph (c) is similar to DR 5-101(B), but broader because it prohibits soliciting a gift as well as preparing (j) A lawyer shall not have sexual relations with a the instrument. It also has a more inclusive list of current client of the lawyer unless a consensual sexual “related persons.” relationship existed between them before the client- lawyer relationship commenced; or have sexual Paragraph (d) is identical to DR 5-104(B). relations with a representative of a current client of the Paragraph (e) incorporates ABA Model Rule 1.8(e). lawyer if the sexual relations would, or would likely, damage or prejudice the client in the representation. Paragraph (f) replaces DR 5-108(A) and (B) and is For purposes of this rule: essentially the same as it relates to accepting payment from someone other than the client. This rule is (1) "sexual relations" means sexual intercourse or somewhat narrower than DR 5-108(B), which prohibits any touching of the sexual or other intimate parts allowing influence from someone who “recommends, of a person or causing such person to touch the employs or pays” the lawyer. sexual or other intimate parts of the lawyer for the purpose of arousing or gratifying the sexual desire Paragraph (g) is virtually identical to DR 5-107(A). of either party; and Paragraph (h)(1) and (2) are similar to DR 6-102(A), but (2) "lawyer" means any lawyer who assists in the do not include the “unless permitted by law” language. representation of the client, but does not include Paragraph (h)(3) retains DR 6-102(B), but substitutes other firm members who provide no such “informed consent, in a writing signed by the client” for assistance.

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“full disclosure.” Paragraph (h)(4) is new and was taken which the lawyer previously represented the former from Illinois Rule of Professional Conduct 1.8(h). client; or (2) there is a substantial risk that confidential factual information as would normally have been Paragraph (i) is essentially the same as DR 5-103(A). obtained in the prior representation of the former client Paragraph (j) retains DR 5-110, reformatted to conform would materially advance the current client’s position to the structure of the rule. in the subsequent matter. Paragraph (k) applies the same vicarious disqualification Adopted 01/01/05 to these personal conflicts as provided in DR 5-105(G). Amended 12/01/06: Paragraph (d) added. Comparison to ABA Model Rule Defined Terms (see Rule 1.0): This rule is identical to ABA Model Rule 1.8 with the “Confirmed in writing” following exceptions. MR 1.8 (b) does not require that “Informed consent” the client’s informed consent be confirmed in writing as “Firm” required in DR 4-101(B). MR 1.8 (h) does not prohibit “Knowingly” agreements to arbitrate malpractice claims. MR 1.8 (j) “Known” does not address sexual relations with representatives of “Matter” corporate clients and does not contain definitions of “Reasonable” terms. “Substantial” RULE 1.9 DUTIES TO FORMER CLIENTS Comparison to Oregon Code (a) A lawyer who has formerly represented a client in a This rule replaces DR 5-105(C), (D) and (H). Like Rule 1.7, matter shall not thereafter represent another person in this rule is a significant departure from the language and the same or a substantially related matter in which that structure of the Oregon Code provisions on conflicts. person's interests are materially adverse to the Paragraph (a) replaces the sometimes confusing interests of the former client unless each affected client reference to “actual or likely conflict” between current gives informed consent, confirmed in writing. and former client with the simpler “interests [that are] materially adverse.” The prohibition applies to matters (b) A lawyer shall not knowingly represent a person in that are the same or “substantially related,” which is the same or a substantially related matter in which a virtually identical to the Oregon Code standard of firm with which the lawyer formerly was associated had “significantly related.” previously represented a client: Paragraph (b) replaces the limitation of DR 5-105(H), but (1) whose interests are materially adverse to that is an arguably clearer expression of the prohibition. The person; and new language makes it clear that a lawyer who moves to (2) about whom the lawyer had acquired a new firm is prohibited from being adverse to a client of information protected by Rules 1.6 and 1.9(c) that the lawyer’s former firm only if the lawyer has acquired is material to the matter, unless each affected confidential information material to the matter while at client gives informed consent, confirmed in writing. the former firm. (c) A lawyer who has formerly represented a client in a Paragraph (c) makes clear that the duty not to use matter or whose present or former firm has formerly confidential information to the client’s disadvantage represented a client in a matter shall not thereafter: continues after the conclusion of the representation, except where the information “has become generally (1) use information relating to the representation known.” to the disadvantage of the former client except as these Rules would permit or require with respect to Paragraph (d) defines “substantially related.” The a client, or when the information has become definition is taken in part from former DR 5-105(D) and in generally known; or part from Comment [3] to ABA Model Rule 1.9. (2) reveal information relating to the Comparison to ABA Model Rule representation except as these Rules would permit ABA Model Rule 1.9(a) and (b) require consent only of or require with respect to a client. the former client. The Model Rule also has no definition (d) For purposes of this rule, matters are “substantially of “substantially related;” this definition was derived in related” if (1) the lawyer’s representation of the current part from the Comment to MR 1.9. client will injure or damage the former client in connection with the same transaction or legal dispute in

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RULE 1.10 IMPUTATION OF CONFLICTS OF INTEREST; Defined Terms (see Rule 1.0): SCREENING “Firm” (a) While lawyers are associated in a firm, none of them “Know” shall knowingly represent a client when any one of “Knowingly” them practicing alone would be prohibited from doing “Law firm” so by Rules 1.7 or 1.9, unless the prohibition is based on “Matter” a personal interest of the prohibited lawyer or on Rule “Screened” 1.7(a)(3) and does not present a significant risk of “Substantial” materially limiting the representation of the client by the remaining lawyers in the firm. Comparison to Oregon Code (b) When a lawyer has terminated an association with a Paragraph (a) is similar to the vicarious disqualification firm, the firm is not prohibited from thereafter provisions of DR 5-105(G), except that it does not apply representing a person with interests materially adverse when the disqualification is based only on a “personal to those of a client represented by the formerly interest” of the disqualified lawyer that will not limit the associated lawyer and not currently represented by the ability of the other lawyers in the firm to represent the firm, unless: client. (1) the matter is the same or substantially related Paragraph (b) is substantially the same as DR 5-105(J). to that in which the formerly associated lawyer Paragraph (d) is similar to DR 5-105 in allowing clients to represented the client; and consent to what would otherwise be imputed conflicts. (2) any lawyer remaining in the firm has Paragraph (e) has no counterpart in the Oregon Code information protected by Rules 1.6 and 1.9(c) that because the Oregon Code does not have a special rule is material to the matter. addressing government lawyer conflicts. (c) When a lawyer becomes associated with a firm, no Comparison to ABA Model Rule lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified Paragraph (a) is similar to the ABA Model Rule, but under Rule 1.9, unless the personally disqualified includes reference to “spouse/family” conflicts which are lawyer is promptly screened from any form of not separately addressed in the Model Rule. Paragraph participation or representation in the matter and (b) is identical to the ABA Model Rule. written notice of the screening procedures employed is The title was changed to include “Screening.” promptly given to any affected former client. (d) A disqualification prescribed by this rule may be RULE 1.11 SPECIAL CONFLICTS OF INTEREST FOR waived by the affected clients under the conditions FORMER AND CURRENTGOVERNMENT OFFICERS AND stated in Rule 1.7. EMPLOYEES (e) The disqualification of lawyers associated in a firm (a) Except as Rule 1.12 or law may otherwise expressly with former or current government lawyers is governed permit, a lawyer who has formerly served as a public by Rule 1.11. officer or employee of the government: Adopted 01/01/05 (1) is subject to Rule 1.9 (c); and Amended 12/01/06: Paragraph (a) amended to include (2) shall not otherwise represent a client in reference to Rule 1.7(a)(3). connection with a matter in which the lawyer participated personally and substantially as a public Amended 01/01/14: Paragraph (c) revised to eliminate officer or employee, unless the appropriate detailed screening requirements and to require notice to government agency gives its informed consent, the affected client rather than the lawyer’s former firm. confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter substantially in

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accordance with the procedures set forth in Rule (vi) negotiate for private employment with any 1.10(c); and person who is involved as a party or as lawyer for a party in a matter in which the lawyer is (2) written notice is promptly given to the participating personally and substantially, except appropriate government agency to enable it to that a lawyer serving as a law clerk or staff lawyer ascertain compliance with the provisions of this to or otherwise assisting in the official duties of a rule. judge, other adjudicative officer or arbitrator may (c) Except as law may otherwise expressly permit, a negotiate for private employment as permitted by lawyer having information that the lawyer knows is Rule 1.12(b) and subject to the conditions stated in confidential government information about a person Rule 1.12(b). acquired when the lawyer was a public officer or (e) Notwithstanding any Rule of Professional Conduct, employee, may not represent a private client whose and consistent with the "debate" clause, Article IV, interests are adverse to that person in a matter in which section 9, of the Oregon Constitution, or the "speech or the information could be used to the material debate" clause, Article I, section 6, of the United States disadvantage of that person. As used in this Rule, the Constitution, a lawyer-legislator shall not be subject to term "confidential government information" means discipline for words uttered in debate in either house of information that has been obtained under the Oregon Legislative Assembly or for any speech or governmental authority and which, at the time this Rule debate in either house of the United States Congress. is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to (f) A member of a lawyer-legislator's firm shall not be disclose and which is not otherwise available to the subject to discipline for representing a client in any public. A firm with which that lawyer is associated may claim against the State of Oregon provided: undertake or continue representation in the matter (1) the lawyer-legislator is screened from only if the disqualified lawyer is timely screened from participation or representation in the matter in any participation in the matter substantially in accordance with the procedure set forth in Rule accordance with the procedures set forth in Rule 1.10(c) (the required affidavits shall be served on 1.10(c). the Attorney General); and (d) Except as law may otherwise expressly permit, a (2) the lawyer-legislator shall not directly or lawyer currently serving as a public officer or employee: indirectly receive a fee for such representation. (1) is subject to Rules 1.7 and 1.9; and Adopted 01/01/05 (2) shall not: Defined Terms (see Rule 1.0): (i) use the lawyer's public position to obtain, or “Confirmed in writing” attempt to obtain, special advantage in legislative “Informed consent” matters for the lawyer or for a client. “Firm” (ii) use the lawyer's public position to influence, or “Knowingly” attempt to influence, a tribunal to act in favor of “Knows” the lawyer or of a client. “Matter” “Screened” (iii) accept anything of value from any person when “Substantial” the lawyer knows or it is obvious that the offer is “Tribunal” for the purpose of influencing the lawyer's action as “Written” a public official. Comparison to Oregon Code (iv) either while in office or after leaving office use information the lawyer knows is confidential This rule has no exact counterpart in the Oregon Code, government information obtained while a public under which the responsibilities of government lawyers official to represent a private client. are addressed in DR 5-109 and DR 8-101, as well as in the general conflict limitations of DR 5-105. This rule puts all (v) participate in a matter in which the lawyer the requirements for government lawyers in one place. participated personally and substantially while in private practice or nongovernmental employment, Paragraph (a) is essentially the same as DR 5-109(B). unless the lawyer's former client and the Paragraph (b) imputes a former government lawyer’s appropriate government agency give informed unconsented-to conflicts to the new firm unless the consent, confirmed in writing; or

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former government lawyer is screened from participation RULE 1.12 FORMER JUDGE, ARBITRATOR, MEDIATOR OR in the matter, as would be allowed under DR 5-105(I). OTHER THIRD-PARTY NEUTRAL Paragraph (c) incorporates the prohibitions in DR 8- (a) Except as stated in paragraph (d) and Rule 2.4(b), 101(A)(1), (A)(4) and (B). It also allows screening of the a lawyer shall not represent anyone in connection with disqualified lawyer to avoid disqualification of the entire a matter in which the lawyer participated personally firm. and substantially as a judge or other adjudicative officer or law clerk to such a person or as an Paragraph (d) applies concurrent and former client arbitrator, mediator or other third-party neutral, conflicts to lawyers currently serving as a public officer or unless all parties to the proceeding give informed employee; it also incorporates in (d)(2) (i) –(iv) the consent, confirmed in writing. limitations in DR 8-101(A)(1)-(4), with the addition in (b) A lawyer shall not negotiate for employment with (d)(2)(iv) of language from MR 1.11 that a lawyer is any person who is involved as a party or as lawyer for a prohibited from using only that government information party in a matter in which the lawyer is participating that the lawyer knows is confidential. Paragraph (d)(2)(v) personally and substantially as a judge or other is the converse of DR 5-109(B), and has no counterpart in adjudicative officer or as an arbitrator, mediator or the Oregon Code other than the general former client other third-party neutral. A lawyer serving as a law conflict provision of DR 5-105. Paragraph (d)(2)(vi) has no clerk or staff lawyer to or otherwise assisting in the counterpart in the Oregon Code; it is an absolute bar to official duties of a judge or other adjudicative officer negotiating for private employment while a serving in a may negotiate for employment with a party or lawyer non-judicial government position for anyone other than a involved in a matter in which the clerk is participating law clerk or staff lawyer assisting in the official duties of a personally and substantially, but only after the lawyer judicial officer. has notified the judge or other adjudicative officer. Paragraph (e) is taken from DR 8-101(C) to retain a (c) If a lawyer is disqualified by paragraph (a), no lawyer relatively recent addition to the Oregon Code. in a firm with which that lawyer is associated may Paragraph (f) is taken from DR 8-101(D), also to retain a knowingly undertake or continue representation in the relatively recent addition to the Oregon Code. matter unless: Comparison to ABA Model Rule (1) the disqualified lawyer is timely screened from any participation in the matter substantially in Paragraph (a) is identical to the ABA Model Rule, with the accordance with the procedures set forth in Rule addition of a cross-reference to Rule 1.12, to clarify the 1.10(c); and scope of the rule. (2) written notice is promptly given to the parties Paragraphs (b) and (c) are identical to the Model Rule, and any appropriate tribunal to enable them to except that the limitation on apportionment of fees does ascertain compliance with the provisions of this not apply when a former government lawyer is rule. disqualified and screened from participation in a matter. MR 1.10(c) does not prescribe the screening methods; (d) An arbitrator selected as a partisan of a party in a MR 1.0 defines screening as “timely…procedures that are multimember arbitration panel is not prohibited from reasonably adequate.” subsequently representing that party. Paragraphs (d)(2)(i)-(iv) are not found in the Model Rules; Adopted 01/01/05 as discussed above, they are taken from DR 8-101(A). Amended 01/01/14: References in paragraph (a) Paragraph (d)(2)(v) is modified to require consent of the reversed. lawyer’s former client as well as the appropriate government agency, to continue the Oregon Code Defined Terms (see Rule 1.0): requirement of current and former client consent in such “Confirmed in writing” situations. Paragraph (d)(2)(vi) deviates from the Model “Informed consent” Rule to clarify that the exception applies to staff lawyers “Firm” who do not perform traditional “law clerk” functions. “Knowingly” Paragraph (e) has no counterpart in the Model Rules. “Matter” “Screened” Paragraph (f) also has no counterpart in the Model Rules. “Substantial” “Tribunal” “Written” Comparison to Oregon Code

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Paragraph (a) is essentially the same as DR 5-109(A), with substantial injury to the organization, then the an exception created for lawyers serving as mediators lawyer may reveal information relating to the under Rule 2.4(b). representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the Paragraph (b) has no equivalent rule in the Oregon Code; lawyer reasonably believes necessary to prevent like Rule 1.11(d)(2)(vi) it address the conflict that arises substantial injury to the organization. when a person serving as, or as a clerk or staff lawyer to, a judge or other third party neutral, negotiates for (d) Paragraph (c) shall not apply with respect to employment with a party or a party’s lawyer. This information relating to a lawyer’s representation of an situation is covered under DR 5-101(A), but its organization to investigate an alleged violation of law, application may not be as clear. or to defend the organization or an officer, employee or other constituent associated with the organization Paragraph (c) applies the vicarious disqualification that against a claim arising out of an alleged violation of law. would be imposed under DR 5-105(G) to a DR 5-109 conflict; the screening provision is broader than DR 5- (e) A lawyer who reasonably believes that he or she has 105(I), which is limited to lawyers moving between firms. been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c), or who withdraws Paragraph (d) has no counterpart in the Oregon Code. under circumstances that require or permit the lawyer Comparison to ABA Model Rule to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to This is the ABA Model Rule, except that it requires assure that the organization’s highest authority is screening substantially in accordance with the specific informed of the lawyer’s discharge or withdrawal. procedures in Rule 1.10(c). It deviates slightly to clarify that (b) applies to staff lawyers who do not perform (f) In dealing with an organization's directors, officers, traditional “law clerk” functions. employees, members, shareholders or other constituents, a lawyer shall explain the identity of the RULE 1.13 ORGANIZATION AS CLIENT client when the lawyer knows or reasonably should know that the organization's interests are adverse to (a) A lawyer employed or retained by an organization those of the constituents with whom the lawyer is represents the organization acting through its duly dealing. authorized constituents. (g) A lawyer representing an organization may also (b) If a lawyer for an organization knows that an officer, represent any of its directors, officers, employees, employee or other person associated with the members, shareholders or other constituents, subject organization is engaged in action, intends to act or to the provisions of Rule 1.7. If the organization's refuses to act in a matter related to the representation consent to the dual representation is required by Rule that is a violation of a legal obligation to the 1.7, the consent may only be given by an appropriate organization, or a violation of law which reasonably official of the organization other than the individual might be imputed to the organization, and that is likely who is to be represented, or by the shareholders. to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in Adopted 01/01/05 the best interest of the organization. Unless the lawyer Amended 12/01/06: Paragraph (b) amended to conform reasonably believes that it is not necessary in the best to ABA Model Rule 1.13(b). interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, Defined Terms (see Rule 1.0): including, if warranted by the circumstances, referral to “Believes” the highest authority that can act on behalf of the “Information relating to the representation” organization as determined by applicable law. “Knows” (c) Except as provided in paragraph (d), if “Matter” “Reasonable” (1) despite the lawyer's efforts in accordance with “Reasonably” paragraph (b) the highest authority that can act on “Reasonably believes” behalf of the organization insists upon or fails to “Reasonably should know” address in a timely and appropriate manner an “Substantial” action or a refusal to act, that is clearly a violation of law, and Comparison to Oregon Code (2) the lawyer reasonably believes that the This rule has no counterpart in the Oregon Code. violation is reasonably certain to result in

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Comparison to ABA Model Rule for costs and expenses and escrow and other funds held for another, shall be kept in a separate "Lawyer Trust This is the ABA Model Rule, as amended in August 2003, Account" maintained in the jurisdiction where the except that in paragraph (g), the words “may only” lawyer's office is situated. Each lawyer trust account replace “shall” to make it clear that the rule does not shall be an interest bearing account in a financial require the organization to consent. institution selected by the lawyer or law firm in the exercise of reasonable care. Lawyer trust accounts shall RULE 1.14 CLIENT WITH DIMINISHED CAPACITY conform to the rules in the jurisdictions in which the (a) When a client's capacity to make adequately accounts are maintained. Other property shall be considered decisions in connection with a identified as such and appropriately safeguarded. representation is diminished, whether because of Complete records of such account funds and other minority, mental impairment or for some other reason, property shall be kept by the lawyer and shall be the lawyer shall, as far as reasonably possible, maintain preserved for a period of five years after termination of a normal client-lawyer relationship with the client. the representation. (b) When the lawyer reasonably believes that the client (b) A lawyer may deposit the lawyer's own funds in a has diminished capacity, is at risk of substantial lawyer trust account for the sole purposes of paying physical, financial or other harm unless action is taken bank service charges or meeting minimum balance and cannot adequately act in the client's own interest, requirements on that account, but only in amounts the lawyer may take reasonably necessary protective necessary for those purposes. action, including consulting with individuals or entities (c) A lawyer shall deposit into a lawyer trust account that have the ability to take action to protect the client legal fees and expenses that have been paid in advance, and, in appropriate cases, seeking the appointment of a to be withdrawn by the lawyer only as fees are earned guardian ad litem, conservator or guardian. or expenses incurred, unless the fee is denominated as (c) Information relating to the representation of a client “earned on receipt,” “nonrefundable” or similar terms with diminished capacity is protected by Rule 1.6. When and complies with Rule 1.5(c)(3). taking protective action pursuant to paragraph (b), the (d) Upon receiving funds or other property in which a lawyer is impliedly authorized under Rule 1.6(a) to client or third person has an interest, a lawyer shall reveal information about the client, but only to the promptly notify the client or third person. Except as extent reasonably necessary to protect the client's stated in this rule or otherwise permitted by law or by interests. agreement with the client, a lawyer shall promptly Adopted 01/01/05 deliver to the client or third person any funds or other property that the client or third person is entitled to Defined Terms (see Rule 1.0): receive and, upon request by the client or third person, “Believes” shall promptly render a full accounting regarding such “Information relating to the representation of a client” property. “Reasonably” “Reasonably believes” (e) When in the course of representation a lawyer is in “Substantial” possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the Comparison to Oregon Code property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute Paragraph (b) is similar to DR 7-101(C), but offers more all portions of the property as to which the interests are guidance as to the circumstances when a lawyer can take not in dispute. protective action in regard to a client. Paragraph (a) and (c) have no counterparts in the Oregon Code, but provide Adopted 01/01/05 helpful guidance for lawyers representing clients with Amended 11/30/05: Paragraph (a) amended to eliminate diminished capacity. permission to have trust account “elsewhere with the Comparison to ABA Model Rule consent of the client” and to require accounts to conform to jurisdiction in which located. Paragraph (b) amended This is the ABA Model Rule. to allow deposit of lawyer funds to meet minimum RULE 1.15-1 SAFEKEEPING PROPERTY balance requirements. (a) A lawyer shall hold property of clients or third Amended 12/01/10: Paragraph (c) amended to create an persons that is in a lawyer's possession separate from exception for fees “earned on receipt” within the the lawyer's own property. Funds, including advances meaning of Rule 1.5(c)(3).

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Defined Terms (see Rule 1.0): (2) a pooled lawyer trust account with subaccounting which will provide for computation “Law firm” of interest earned by each client's funds and the “Reasonable” payment thereof, net of any bank service charges, Comparison to Oregon Code to each client. Paragraphs (a)-(e) contain all of the elements of DR 9- (d) In determining whether client funds can or cannot 101(A)-(C) and (D)(1), albeit in slightly different order. earn net interest, the lawyer or law firm shall consider The rule is broader than DR 9-101 in that it also applies the following factors: to the property of prospective clients and third persons (1) the amount of the funds to be deposited; received by a lawyer. Paragraph (c) makes it clear that fees and costs paid in advance must be held in trust until (2) the expected duration of the deposit, including earned unless the fee is denominated “earned on the likelihood of delay in the matter for which the receipt” and complies with the requirements of Rule funds are held; 1.5(c)(3). (3) the rates of interest at financial institutions Comparison to ABA Model Rule where the funds are to be deposited; Paragraph (a) has been modified slightly from the Model (4) the cost of establishing and administering a Rule, which applies only to property held “in connection separate interest bearing lawyer trust account for with a representation,” while Oregon’s rule continues to the client’s benefit, including service charges apply to all property, regardless of the capacity in which imposed by financial institutions, the cost of the it is held by the lawyer. The Model Rule allows trust lawyer or law firm's services, and the cost of accounts to be maintained “elsewhere with the consent preparing any tax-related documents to report or of the client or third person.” There is no requirement in account for income accruing to the client’s benefit; the Model Rule that the account to be labeled a “Lawyer ( 5) the capability of financial institutions, the Trust Account” or that it be selected by the lawyer “in lawyer or the law firm to calculate and pay income the exercise of reasonable care.” The Model Rule also to individual clients; and makes no provision for “earned on receipt fees.” (6) any other circumstances that affect the ability of RULE 1.15-2 IOLTA ACCOUNTS AND TRUST ACCOUNT the client’s funds to earn a net return for the client. OVERDRAFT NOTIFICATION (e) The lawyer or law firm shall review the IOLTA (a) A lawyer trust account for client funds that cannot account at reasonable intervals to determine whether earn interest in excess of the costs of generating such circumstances have changed that require further action interest (“net interest”) shall be referred to as an IOLTA with respect to the funds of a particular client. (Interest on Lawyer Trust Accounts) account. IOLTA (f) If a lawyer or law firm determines that a particular accounts shall be operated in accordance with this rule client’s funds in an IOLTA account either did or can earn and with operating regulations and procedures as may net interest, the lawyer shall transfer the funds into an be established by the Oregon State Bar with the account specified in paragraph (c) of this rule and approval of the Oregon Supreme Court. request a refund for the lesser of either: any interest (b) All client funds shall be deposited in the lawyer’s or earned by the client’s funds and remitted to the Oregon law firm’s IOLTA account unless a particular client’s Law Foundation; or the interest the client’s funds would funds can earn net interest. All interest earned by funds have earned had those funds been placed in an interest held in the IOLTA account shall be paid to the Oregon bearing account for the benefit of the client at the same Law Foundation as provided in this rule. bank. (c) Client funds that can earn net interest shall be (1) The request shall be made in writing to the deposited in an interest bearing trust account for the Oregon Law Foundation within a reasonable period client’s benefit and the net interest earned by funds in of time after the interest was remitted to the such an account shall be held in trust as property of the Foundation and shall be accompanied by written client in the same manner as is provided in paragraphs verification from the financial institution of the (a) through (d) of Rule 1.15-1 for the principal funds of interest amount. the client. The interest bearing account shall be either: (2) The Oregon Law Foundation will not refund (1) a separate account for each particular client or more than the amount of interest it received from client matter; or the client’s funds in question. The refund shall be remitted to the financial institution for transmittal

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to the lawyer or law firm, after appropriate (j) Agreements between financial institutions and the accounting and reporting. Oregon State Bar or the Oregon Law Foundation shall apply to all branches of the financial institution. Such (g) No earnings from a lawyer trust account shall be agreements shall not be canceled except upon a thirty- made available to a lawyer or the lawyer’s firm. day notice in writing to OSB Disciplinary Counsel in the (h) A lawyer or law firm may maintain a lawyer trust case of a trust account overdraft notification agreement account only at a financial institution that: or to the Oregon Law Foundation in the case of an IOLTA agreement. (1) is authorized by state or federal banking laws to transact banking business in the state where the (k) Nothing in this rule shall preclude financial account is maintained; institutions which participate in any trust account overdraft notification program from charging lawyers or (2) is insured by the Federal Deposit Insurance law firms for the reasonable costs incurred by the Corporation or an analogous federal government financial institutions in participating in such program. agency; (l) Every lawyer who receives notification from a (3) has entered into an agreement with the Oregon financial institution that any instrument presented Law Foundation: against his or her lawyer trust account was presented (i) to remit to the Oregon Law Foundation, at least against insufficient funds, whether or not the quarterly, interest earned by the IOLTA account, instrument was honored, shall promptly notify computed in accordance with the institution’s Disciplinary Counsel in writing of the same information standard accounting practices, less reasonable required by paragraph (i). The lawyer shall include a full service charges, if any; and explanation of the cause of the overdraft. (ii) to deliver to the Oregon Law Foundation a (m) For the purposes of paragraph (h)(3), “service report with each remittance showing the name of charges” are limited to the institution’s following the lawyer or law firm for whom the remittance is customary check and deposit processing charges: sent, the number of the IOLTA account as assigned monthly maintenance fees, per item check charges, by the financial institution, the average daily items deposited charges and per deposit charges. Any collected account balance or the balance on which other fees or transactions costs are not “service the interest remitted was otherwise computed for charges” for purposes of paragraph (h)(3) and must be each month for which the remittance is made, the paid by the lawyer or law firm. rate of interest applied, the period for which the Adopted 01/01/05 remittance is made, and the amount and description of any service charges deducted during Amended 11/30/05: Paragraph (a) amended to clarify the remittance period; and scope of rule. Paragraph (h) amended to allow remittance of interest to OLF in accordance with bank’s (4) has entered into an overdraft notification standard accounting practice, and to report either the agreement with the Oregon State Bar requiring the average daily collected account balance or the balance financial institution to report to the Oregon State on which interest was otherwise computed. Paragraph (j) Bar Disciplinary Counsel when any properly payable amended to require notice to OLF of cancellation of IOLTA instrument is presented against such account agreement. Paragraph (m) and (n) added. containing insufficient funds, whether or not the instrument is honored. Amended 01/01/12: Requirement for annual certification, formerly paragraph (m), deleted and obligation moved to (i) Overdraft notification agreements with financial ORS Chapter 9. institutions shall require that the following information be provided in writing to Disciplinary Counsel within ten Amended 01/01/14: Paragraph (f) revised to clarify the banking days of the date the item was returned unpaid: amount of interest that is to be refunded if client funds are mistakenly placed in an IOLTA account. (1) the identity of the financial institution; Defined Terms (see Rule 1.0) (2) the identity of the lawyer or law firm; “Firm” (3) the account number; and “Law Firm” “Matter” (4) either (i) the amount of the overdraft and the “Reasonable” date it was created; or (ii) the amount of the “Writing” returned instrument and the date it was returned. “Written”

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Comparison to Oregon Code been rendered unreasonably difficult by the client; or This rule is a significant revision of the IOLTA provisions of DR 9-101 and the trust account overdraft notification (7) other good cause for withdrawal exists. provisions of DR 9-102. The original changes were (c) A lawyer must comply with applicable law requiring prompted by the US Supreme Court’s decision in Brown notice to or permission of a tribunal when terminating a v. Washington Legal Foundation that clients are entitled representation. When ordered to do so by a tribunal, a to “net interest” that can be earned on funds held in lawyer shall continue representation notwithstanding trust. Additional changes were made to conform the rule good cause for terminating the representation. to banking practice and to clarify the requirement for annual certification. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to Comparison to ABA Model Rule protect a client's interests, such as giving reasonable The Model Rule has no equivalent provisions regarding notice to the client, allowing time for employment of IOLTA and the trust account overdraft notification other counsel, surrendering papers and property to programs. In most jurisdictions those are stand-alone which the client is entitled and refunding any advance Supreme Court orders. payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal RULE 1.16 DECLINING OR TERMINATING property and money of the client to the extent REPRESENTATION permitted by other law. (a) Except as stated in paragraph (c), a lawyer shall not Adopted 01/01/05 represent a client or, where representation has Defined Terms (see Rule 1.0): commenced, shall withdraw from the representation of a client if: “Believes” “Fraud” (1) the representation will result in violation of the “Fraudulent” Rules of Professional Conduct or other law; “Reasonable” (2) the lawyer's physical or mental condition “Reasonably” materially impairs the lawyer's ability to represent “Reasonably believes” the client; or “Substantial” “Tribunal” (3) the lawyer is discharged. Comparison to Oregon Code (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: This rule is essentially the same as DR 2-110, except that it specifically applies to declining a representation as well (1) withdrawal can be accomplished without as withdrawing from representation. Paragraph (a) material adverse effect on the interests of the parallels the circumstances in which DR 2-110(B) client; mandates withdrawal, and also includes when the client (2) the client persists in a course of action involving is acting “merely for the purpose of harassing or the lawyer's services that the lawyer reasonably maliciously injuring” another person, which is prohibited believes is criminal or fraudulent; in DR 2-109(A)(1) and DR 7-102(A)(1). (3) the client has used the lawyer's services to Paragraph (b) is similar to DR 2-110(C) regarding perpetrate a crime or fraud; permissive withdrawal. It allows withdrawal for any reason if it can be accomplished without “material (4) the client insists upon taking action that the adverse effect” on the client. Withdrawal is also allowed lawyer considers repugnant or with which the if the lawyer considers the client’s conduct repugnant or lawyer has a fundamental disagreement; if the lawyer fundamentally disagrees with it. (5) the client fails substantially to fulfill an Paragraph (c) is like DR 2-110(A)(1) in requiring obligation to the lawyer regarding the lawyer's compliance with applicable law requiring notice or services and has been given reasonable warning permission from the tribunal; it also clarifies the lawyer’s that the lawyer will withdraw unless the obligation obligations if permission is denied. is fulfilled; Paragraph (d) incorporates DR 2-110(A)(2) and (3). The (6) the representation will result in an final sentence has no counterpart in the Oregon Code; it unreasonable financial burden on the lawyer or has recognizes the right of a lawyer to retain client papers

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and other property to the extent permitted by other law. (d) If certified mail is not effective to give the client The “other law” includes statutory lien rights as well as notice, the selling lawyer shall take such steps as may court decisions determining lawyer ownership of certain be reasonable under the circumstances to give the papers created during a representation. A lawyer’s right client actual notice of the proposed sale and the other under other law to retain papers and other property information required in subsection (b). remains subject to other obligations, such as the lawyer’s (e) A client's consent to the transfer of its legal work to general fiduciary duty to avoid prejudicing a former the purchasing lawyer or law firm will be presumed if client, which might supersede the right to claim a lien. no objection is received within forty-five (45) days after Comparison with ABA Model Rule the date the notice was mailed. This is essentially identical to the Model Rule except that (f) If substitution of counsel is required by the rules of a MR 1.16(d) refers on to the retention of the client’s tribunal in which a matter is pending, the selling lawyer “papers.” The additional language in the Oregon rule was shall assure that substitution of counsel is made. taken from ORS 86.460. (g) The fees charged clients shall not be increased by reason of the sale except upon agreement of the client. RULE 1.17 SALE OF LAW PRACTICE (h) The sale of a law practice may be conditioned on the (a) A lawyer or law firm may sell or purchase all or part selling lawyer's ceasing to engage in the private practice of a law practice, including goodwill, in accordance with of law or some particular area of practice for a this rule. reasonable period within the geographic area in which (b) The selling lawyer, or the selling lawyer's legal the practice has been conducted. representative, in the case of a deceased or disabled Adopted 01/01/05 lawyer, shall provide written notice of the proposed sale to each current client whose legal work is subject Defined Terms (see Rule 1.0): to transfer, by certified mail, return receipt requested, “Known” to the client's last known address. The notice shall “Law firm” include the following information: “Matter” (1) that a sale is proposed; “Reasonable” “Tribunal” (2) the identity of the purchasing lawyer or law “Written” firm, including the office address(es), and a brief description of the size and nature of the purchasing Comparison to Oregon Code lawyer's or law firm's practice; This rule continues DR 2-111which, when adopted in (3) that the client may object to the transfer of its 1995, was derived in large part from Model Rule 1.17. legal work, may take possession of any client files Comparison to ABA Model Rule and property, and may retain counsel other than the purchasing lawyer or law firm; The Model Rule requires sale of the entire practice or practice area, and also requires that the selling lawyer (4) that the client's legal work will be transferred to cease to engage in the private practice of law, or the area the purchasing lawyer or law firm, who will then of practice sold, within a certain geographic area. The take over the representation and act on the client's Model Rule gives the client 90 days to object before it behalf, if the client does not object to the transfer will be presumed the client has consented to the transfer within forty-five (45) days after the date the notice of the client’s files. The Model Rule requires notice to all was mailed; and clients, not only current clients, but does not require that (5) whether the selling lawyer will withdraw from it be sent by certified mail. The Model Rule does not the representation not less than forty-five (45) days address the selling lawyer’s right to give an opinion of after the date the notice was mailed, whether or the purchasing lawyer’s qualifications. The Model Rule not the client consents to the transfer of its legal does not allow for client consent to an increase in the work. fees to be charged as a result of the sale. (c) The notice may describe the purchasing lawyer or RULE 1.18 DUTIES TO PROSPECTIVE CLIENT law firm's qualifications, including the selling lawyer's opinion of the purchasing lawyer or law firm's (a) A person who consults with a lawyer about the suitability and competence to assume representation of possibility of forming a client-lawyer relationship with the client, but only if the selling lawyer has made a respect to a matter is a prospective client. reasonable effort to arrive at an informed opinion.

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(b) Even when no client-lawyer relationship ensues, a lawyer with a view to obtaining professional legal lawyer who has learned information from a prospective services.” OEC 503(1)(a). The rule also codifies a client shall not use or reveal that information, except as significant body of case law and other authority that has Rule 1.9 would permit with respect to information of a interpreted the duty of confidentiality to apply to former client. prospective clients. (c) A lawyer subject to paragraph (b) shall not represent Comparison to ABA Model Rule a client with interests materially adverse to those of a This is identical to the ABA Model Rule, except it doesn’t prospective client in the same or a substantially related prohibit the screened lawyer from sharing in the fee. matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in COUNSELOR paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a RULE 2.1 ADVISOR firm with which that lawyer is associated may In representing a client, a lawyer shall exercise knowingly undertake or continue representation in such independent professional judgment and render candid a matter, except as provided in paragraph (d). advice. In rendering advice, a lawyer may refer not only (d) When the lawyer has received disqualifying to law but to other considerations such as moral, information as defined in paragraph (c), representation economic, social and political factors, that may be is permissible if: relevant to the client's situation. (1) both the affected client and the prospective client Adopted 01/01/05 have given informed consent, confirmed in writing, or: Comparison to Oregon Code (2) the lawyer who received the information took This rule has no counterpart in the Oregon Code, reasonable measures to avoid exposure to more although it codifies the concept of exercising disqualifying information than was reasonably independent judgment that is fundamental to the role of necessary to determine whether to represent the the lawyer and which is mentioned specifically in DRs 2- prospective client; and 103, 5-101, 5-104, 5-108 and 7-101. (i) the disqualified lawyer is timely screened from any Comparison to ABA Model Rule participation in the matter; and This is the ABA Model Rule. (ii) written notice is promptly given to the prospective client RULE 2.2 [RESERVED] Adopted 01/01/05 RULE 2.3 EVALUATION FOR USE BY THIRD PERSONS Amended 12/11/09: Paragraph (d) amended to conform to ABA Model Rule 1.18 except for prohibition against (a) A lawyer may provide an evaluation of a matter disqualified lawyer being apportioned a part of the fee. affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the Amended 01/01/14: Paragraphs (a) and (b) amended evaluation is compatible with other aspects of the slightly to conform to changes in the Model Rule. lawyer's relationship with the client. Defined Terms (see Rule 1.0): (b) When the lawyer knows or reasonably should know “Confirmed in writing” that the evaluation is likely to affect the client's “Informed consent” interests materially and adversely, the lawyer shall not “Firm” provide the evaluation unless the client gives informed “Knowingly” consent. “Matter” (c) Except as disclosure is authorized in connection with “Screened” a report of an evaluation, information relating to the “Substantial” evaluation is otherwise protected by Rule 1.6. “Written” Adopted 01/01/05 Comparison to Oregon Code Defined Terms (see Rule 1.0): This rule has no counterpart in the Oregon Code. It is consistent with the rule of lawyer-client privilege that “Believes” defines a client to include a person “who consults a “Informed consent”

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“Knows” the parties to resolve the matter.” It requires that the “Matter” lawyer inform unrepresented parties that the lawyer is “Reasonably believes” not representing them and, when necessary, explain the “Reasonably should know” difference in the role of a third-party neutral. The Model Rule does not address the lawyer’s drafting of Comparison to Oregon Code documents to implement the parties’ agreement, or the This rule is similar to DR 7-101(D), which was adopted in circumstances in which a member of the lawyer’s firm 1997 based on former ABA Model Rule 2.3. Paragraph (b) can represent a party. is new in 2002 to require client consent only when the evaluation poses is a risk of material and adverse affect ADVOCATE on the client. Under paragraph (a), when there is no such risk, the lawyer needs only to determine that the RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS evaluation is compatible with other aspects of the relationship. In representing a client or the lawyer’s own interests, a Comparison to ABA Model Rule lawyer shall not knowingly bring or defend a proceeding, assert a position therein, delay a trial or This is the ABA Model Rule. take other action on behalf of a client, unless there is a basis in law and fact for doing so that is not frivolous, RULE 2.4 LAWYER SERVING AS MEDIATOR which includes a good faith argument for an extension, (a) A lawyer serving as a mediator: modification or reversal of existing law, except that a lawyer for the defendant in a criminal proceeding, or (1) shall not act as a lawyer for any party against the respondent in a proceeding that could result in another party in the matter in mediation or in any incarceration may, nevertheless so defend the related proceeding; and proceeding as to require that every element of the case (2) must clearly inform the parties of and obtain the be established. parties' consent to the lawyer's role as mediator. Adopted 01/01/05 (b) A lawyer serving as a mediator: Amended 12/01/06: Paragraph (a) amended to make (1) may prepare documents that memorialize and applicable to a lawyer acting in the lawyer’s own implement the agreement reached in mediation; interests. (2) shall recommend that each party seek Defined Terms (see Rule 1.0): independent legal advice before executing the “Knowingly” documents; and Comparison to Oregon Code (3) with the consent of all parties, may record or may file the documents in court. This rule retains the essence of DR 2-109(A)(2) and DR 7- 102(A)(2), although neither Oregon rule expressly (c) The requirements of Rule 2.4(a)(2) and (b)(2) shall confirms the right of a criminal defense lawyer to defend not apply to mediation programs established by in a manner that requires establishment of every operation of law or court order. element of the case. Adopted 01/01/05 Comparison to ABA Model Rule Amended 01/01/14: Original paragraph (c) relating to This is the ABA Model Rule, tailored slightly to track the firm representation deleted to eliminate conflict with RPC language of DR 2-109(A)(2) and DR 7-102(A)(2). 1.12. Defined Terms (see Rule 1.0): RULE 3.2 [RESERVED] “Matter” RULE 3.3 CANDOR TOWARD THE TRIBUNAL Comparison to Oregon Code (a) A lawyer shall not knowingly: This rule retains much of former DR 5-106. (1) make a false statement of fact or law to a Comparison to ABA Model Rule tribunal or fail to correct a false statement of material fact or law previously made to the tribunal ABA Model Rule 2.4 applies to a lawyer serving as a by the lawyer; “third-party neutral,” including arbitrator, mediator or in “such other capacity as will enable the lawyer to assist

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(2) fail to disclose to the tribunal legal authority in Paragraph (a)(1) is similar to DR 7-102(A)(5), but also the controlling jurisdiction known to the lawyer to requires correction of a previously made statement that be directly adverse to the position of the client and turns out to be false. not disclosed by opposing counsel; Paragraph (a)(2) is the same as DR 7-106(B)(1). (3) offer evidence that the lawyer knows to be Paragraph (a)(3) combines the prohibition in DR 7- false. If a lawyer, the lawyer's client, or a witness 102(A)(4) against presenting perjured testimony or false called by the lawyer, has offered material evidence evidence with the remedial measures required in DR 7- and the lawyer comes to know of its falsity, the 102(B). The rule clarifies that only materially false lawyer shall take reasonable remedial measures, evidence requires remedial action. While the rule allows including, if permitted, disclosure to the tribunal. A a criminal defense lawyer to refuse to offer evidence the lawyer may refuse to offer evidence, other than the lawyer reasonably believes is false, it recognizes that the testimony of a defendant in a criminal matter, that lawyer must allow a criminal defendant to testify. the lawyer reasonably believes is false; Paragraphs (a)(4) and (5) are the same as DR 7-102(A)(3) (4) conceal or fail to disclose to a tribunal that and (8), respectively. which the lawyer is required by law to reveal; or Paragraph (b) is similar to and consistent with the (5) engage in other illegal conduct or conduct interpretations of DR 7-102(B)(1). contrary to these Rules. Paragraph (c) continues the duty of candor to the end of (b) A lawyer who represents a client in an adjudicative the proceeding, but, notwithstanding the language in proceeding and who knows that a person intends to paragraphs (a)(3) and (b), does not require disclosure of engage, is engaging or has engaged in criminal or confidential client information otherwise protected by fraudulent conduct related to the proceeding shall take Rule 1.6. reasonable remedial measures, including, if permitted, disclosure to the tribunal. Paragraph (d) has no equivalent in the Oregon Code. (c) The duties stated in paragraphs (a) and (b) continue Comparison to ABA Model Rule to the conclusion of the proceeding, but in no event Subsections (4) and (5) of paragraph (a) do not exist in require disclosure of information otherwise protected the Model Rule. Also, MR 3.3 (c) requires disclosure even by Rule 1.6. if the information is protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL will enable the tribunal to make an informed decision, A lawyer shall not: whether or not the facts are adverse. (a) knowingly and unlawfully obstruct another party's Adopted 01/01/05 access to evidence or unlawfully alter, destroy or Amended 12/01/10: Paragraphs (a)(3) and (b) amended conceal a document or other material having potential to substitute “if permitted” for “if necessary;” paragraph evidentiary value. A lawyer shall not counsel or assist (c) amended to make it clear that remedial measures do another person to do any such act; not require disclosure of information protected by Rule (b) falsify evidence; counsel or assist a witness to testify 1.6. falsely; offer an inducement to a witness that is

prohibited by law; or pay, offer to pay, or acquiesce in Defined Terms (see Rule 1.0): payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome “Believes” of the case; except that a lawyer may advance, “Fraudulent” guarantee or acquiesce in the payment of: “Knowingly” “Known” (1) expenses reasonably incurred by a witness in “Knows” attending or testifying; “Matter” (2) reasonable compensation to a witness for the “Reasonable” witness's loss of time in attending or testifying; or “Reasonably believes” “Tribunal” (3) a reasonable fee for the professional services of an expert witness. Comparison to Oregon Code

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(c) knowingly disobey an obligation under the rules of a beginning with “…or pay….” Paragraph (f) in the Model tribunal, except for an open refusal based on an Rule prohibits requesting a person other than a client to assertion that no valid obligation exists; refrain from volunteering information except when the person is a relative, employee or other agent of the client (d) in pretrial procedure, knowingly make a frivolous and the lawyer believes the person’s interests will not be discovery request or fail to make reasonably diligent adversely affected. Paragraph (g) does not exist in the effort to comply with a legally proper discovery request Model Rules. by an opposing party; (e) in trial, allude to any matter that the lawyer does RULE 3.5 IMPARTIALITY AND DECORUM OF THE not reasonably believe is relevant or that will not be TRIBUNAL supported by admissible evidence, assert personal A lawyer shall not: knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of (a) seek to influence a judge, juror, prospective juror or a cause, the credibility of a witness, the culpability of a other official by means prohibited by law; civil litigant or the guilt or innocence of an accused; (b) communicate ex parte on the merits of a cause with (f) advise or cause a person to secrete himself or herself such a person during the proceeding unless authorized or to leave the jurisdiction of a tribunal for purposes of to do so by law or court order; making the person unavailable as a witness therein; or (c) communicate with a juror or prospective juror after (g) threaten to present criminal charges to obtain an discharge of the jury if: advantage in a civil matter unless the lawyer reasonably (1) the communication is prohibited by law or court believes the charge to be true and if the purpose of the order; lawyer is to compel or induce the person threatened to take reasonable action to make good the wrong which (2) the juror has made known to the lawyer a desire is the subject of the charge. not to communicate; or Adopted 01/01/05 (3) the communication involves misrepresentation, coercion, duress or harassment; Defined Terms (see Rule 1.0): (d) engage in conduct intended to disrupt a tribunal; or “Believes” “Knowingly” (e) fail to reveal promptly to the court improper “Matter” conduct by a venireman or a juror, or by another “Reasonable” toward a venireman or a juror or a member of their “Reasonably” families, of which the lawyer has knowledge. “Reasonably believes” Adopted 01/01/05 “Tribunal” Amended 12/01/06: Paragraph (b) amended to add “on Comparison to Oregon Code the merits of the cause.” Paragraph (a) is similar to DR 7-109(A). Defined Terms (see Rule 1.0): Paragraph (b) includes the rules regarding witness “Known” contact from DR 7-109, and also the prohibition against “Tribunal” falsifying evidence that is found in DR 7-102(A)(6). Comparison to Oregon Code Paragraph (c) is generally equivalent to DR 7-106(C)(7). Paragraph (a) has no counterpart in the Oregon Code. Paragraph (d) has no equivalent in the Oregon Code. Paragraph (b) replaces DR 7-110, making ex parte contact Paragraph (e) is the same as DR 7-106(C)(1), (3) and (4). subject only to law and court order, without additional Paragraph (f) retains the language of DR 7-109(B). notice requirements. Paragraph (g) retains DR 7-105. Paragraph (c) is similar to DR 7-108(A)-(F). Comparison to ABA Model Rule Paragraph (d) is similar to DR 7-106(C)(6). Paragraphs (a), (c), (d) and (e) are the Model Code, with Paragraph (e) retains the DR 7-108(G). the addition of a “knowingly” standard in (a) and (d). Comparison to ABA Model Rule Paragraph (b) has been amended to retain the specific rules regarding contact with witnesses from DR 7-109,

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This is essentially the ABA Model Rule, with the addition statement that the lawyer would be prohibited from of paragraph (e), which has no counterpart in the Model making under this rule. Rule. Adopted 01/01/05 RULE 3.6 TRIAL PUBLICITY Defined Terms (see Rule 1.0): (a) A lawyer who is participating or has participated in “Firm” the investigation or litigation of a matter shall not make “Knows” an extrajudicial statement that the lawyer knows or “Matter” reasonably should know will be disseminated by means “Reasonable” of public communication and will have a substantial “Reasonably should know” likelihood of materially prejudicing an adjudicative “Substantial” proceeding in the matter. Comparison to Oregon Code (b) Notwithstanding paragraph (a), a lawyer may state: Paragraph (a) replaces DR 7-107(A). (1) the claim, offense or defense involved and, Paragraph (b) has no counterpart in the Oregon Code. except when prohibited by law, the identity of the persons involved; Paragraphs (c)(1) and ( 2) retain the exceptions in DR 7- 107(B) and (C). (2) information contained in a public record; Paragraph (d) applies the limitation of the rule to other (3) that an investigation of a matter is in progress; members in the subject lawyer’s firm or government (4) the scheduling or result of any step in litigation; agency. (5) a request for assistance in obtaining evidence Paragraph (e) retains the requirement of DR 7-107(C). and information necessary thereto; Comparison to ABA Model Rule (6) a warning of danger concerning the behavior of This is essentially the ABA Model Rule, although the a person involved, when there is reason to believe Model Rule has an exception in (c) that allows a lawyer that there exists the likelihood of substantial harm to make statements to protect the client from the to an individual or to the public interest; and substantial undue prejudicial effect of recent publicity (7) in a criminal case, in addition to subparagraphs not initiated by the lawyer or the client. Model Rule 3.6 (1) through (6): has no counterpart to paragraphs (c)(1) and ( 2) or (e) . (i) the identity, residence, occupation and family RULE 3.7 LAWYER AS WITNESS status of the accused; (a) A lawyer shall not act as an advocate at a trial in (ii) if the accused has not been apprehended, which the lawyer is likely to be a witness on behalf of information necessary to aid in apprehension of the lawyer's client unless: that person; (1) the testimony relates to an uncontested issue; (iii) the fact, time and place of arrest; and (2) the testimony relates to the nature and value of (iv) the identity of investigating and arresting legal services rendered in the case; officers or agencies and the length of the investigation. (3) disqualification of the lawyer would work a (c) Notwithstanding paragraph (a), a lawyer may: substantial hardship on the client; or (1) reply to charges of misconduct publicly made (4) the lawyer is appearing pro se. against the lawyer; or (b) A lawyer may act as an advocate in a trial in which ( 2) participate in the proceedings of legislative, another lawyer in the lawyer's firm is likely to be called administrative or other investigative bodies. as a witness on behalf of the lawyer's client. (d) No lawyer associated in a firm or government (c) If, after undertaking employment in contemplated or agency with a lawyer subject to paragraph (a) shall pending litigation, a lawyer learns or it is obvious that make a statement prohibited by paragraph (a). the lawyer or a member of the lawyer's firm may be called as a witness other than on behalf of the lawyer's (e) A lawyer shall exercise reasonable care to prevent client, the lawyer may continue the representation until the lawyer's employees from making an extrajudicial it is apparent that the lawyer's or firm member's testimony is or may be prejudicial to the lawyer's client.

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Adopted 01/01/05 and there is no other feasible means of obtaining the information; and (4) prohibited from making extrajudicial Defined Terms (see Rule 1.0): public statements that will heighten public “Firm” condemnation of the accused. The Model Rule also “Substantial” requires prosecutors to exercise reasonable care that other people assisting or associated with the prosecutor Comparison to Oregon Code do not make extrajudicial public statements that the This rule retains DR 5-102 in its entirety. prosecutor is prohibited from making by Rule .3.6. Comparison to ABA Model Rule RULE 3.9 ADVOCATE IN NONADJUDICATIVE This rule is similar to the ABA Model Rule. Paragraph (a) PROCEEDINGS of the Model Rule applies only when the lawyer is likely A lawyer representing a client before a legislative body to be a necessary witness. In the Model Rule, paragraph or administrative agency in a nonadjudicative (b) does not apply if the witness lawyer will be required proceeding shall disclose that the appearance is in a to disclose information protected by Rule 1.6 or 1.9. representative capacity and shall conform to the Paragraph (c) has no counterpart in the Model Rule. provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR Adopted 01/01/05 The prosecutor in a criminal case shall: Comparison to Oregon Code (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; This rule has no counterpart in the Oregon Code. and Comparison to ABA Model Rule (b) make timely disclosure to the defense of all This is the ABA Model Rule. evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to TRANSACTIONS WITH PERSONS OTHER THAN the defense and to the tribunal all unprivileged CLIENTS mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS a protective order of the tribunal. In the course of representing a client a lawyer shall not Adopted 01/01/05 knowingly: Defined Terms (see Rule 1.0): (a) make a false statement of material fact or law to a “Known” third person; or “Knows” (b) fail to disclose a material fact when disclosure is “Tribunal” necessary to avoid assisting an illegal or fraudulent act Comparison to Oregon Code by a client, unless disclosure is prohibited by Rule 1.6. Paragraph (a) is essentially the same as DR 7-103(A). Adopted 01/01/05 Paragraph (d) is essentially the same as DR 7-103(B), with Defined Terms (see Rule 1.0): the addition of an exception for protective orders. “Fraudulent” Comparison to ABA Model Rule “Knowingly” The ABA Model Rule contains four additional provisions: Comparison to Oregon Code prosecutors are (1) required to make reasonable efforts This rule has no direct counterpart in Oregon, but it to ensure that accused persons are advised of the right expresses prohibitions found in DR 1-102(A)(3), DR 7- and afforded the opportunity to consult with counsel; (2) 102(A)(5) and DR 1-102(A)(7). prohibited from seeking to obtain a waiver of important pretrial rights from an unrepresented person; (3) Comparison to ABA Model Rule prohibited from subpoenaing a lawyer to present This is the ABA Model Rule, except that MR 4.1(b) refers evidence about current or past clients except when the to “criminal” rather than “illegal” conduct. information is unprivileged, necessary to successful completion of an ongoing investigation or prosecution,

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RULE 4.2 COMMUNICATION WITH PERSON Defined Terms (see Rule 1.0): REPRESENTED BY COUNSEL “Knows” In representing a client or the lawyer's own interests, a “Matter” lawyer shall not communicate or cause another to “Reasonable” communicate on the subject of the representation with “Reasonably should know” a person the lawyer knows to be represented by a lawyer on that subject unless: Comparison to Oregon Code (a) the lawyer has the prior consent of a lawyer This rule replaces DR 7-104(B). It is expanded to parallel representing such other person; Rule 4.2 by applying to situations in which the lawyer is representing the lawyer’s own interests. The rule is (b) the lawyer is authorized by law or by court order to broader than DR 7-104(B) in that it specifically prohibits a do so; or lawyer from stating or implying that the lawyer is (c) a written agreement requires a written notice or disinterested. It also imposes an affirmative requirement demand to be sent to such other person, in which case a on the lawyer to correct any misunderstanding an copy of such notice or demand shall also be sent to such unrepresented person may have about the lawyer’s role. other person's lawyer. The rule continues the prohibition against giving legal advice to an unrepresented person. Adopted 01/01/05 Comparison to ABA Model Rule Defined Terms (see Rule 1.0): This is essentially identical to the ABA Model Rule, with “Knows” the addition “or the lawyers own interests” at the “Written” beginning and end to make it clear that the rule applies Comparison to Oregon Code even when the lawyer is not acting on behalf of a client. This rule retains the language of DR 7-104(A), except that RULE 4.4 RESPECT FOR THE RIGHTS OF THIRD PERSONS; the phrase “or on directly related subjects” has been INADVERTENTLY SENT DOCUMENTS deleted. The application of the rule to a lawyer acting in the lawyer’s own interests has been moved to the (a) In representing a client or the lawyer’s own beginning of the rule. interests, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, Comparison to ABA Model Rule harass or burden a third person, or knowingly use This rule is very similar to the ABA Model Rule, except methods of obtaining evidence that violate the legal that the Model Rule does not apply to a lawyer acting in rights of such a person. the lawyer’s own interest. The Model Rule also makes no (b) A lawyer who receives a document or electronically exception for communication required by a written stored information relating to the representation of the agreement. lawyer's client and knows or reasonably should know that the document or electronically stored information RULE 4.3 DEALING WITH UNREPRESENTED PERSONS was inadvertently sent shall promptly notify the sender. In dealing on behalf of a client or the lawyer’s own Adopted 01/01/05 interests with a person who is not represented by counsel, a lawyer shall not state or imply that the Amended 12/01/06: Paragraph (a) amended to make lawyer is disinterested. When the lawyer knows or applicable to a lawyer acting in the lawyer’s own reasonably should know that the unrepresented person interests. misunderstands the lawyer’s role in the matter, the Amended 01/01/14: Paragraph (b) amended to expand lawyer shall make reasonable efforts to correct the scope to electronically stored information. misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to Defined Terms (see Rule 1.0): secure counsel, if the lawyer knows or reasonably “Knowingly” should know that the interests of such a person are or “Knows” have a reasonable possibility of being in conflict with “Reasonably should know” the interests of the client or the lawyer’s own interests. “Substantial” Adopted 01/01/05

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the other lawyer conforms to the Rules of Professional Comparison to Oregon Code Conduct. This rule had no equivalent in the Oregon Code, although paragraph (a) incorporates aspects of DR 7-102(A)(1). RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER Comparison to ABA Model Rule (a) A lawyer is bound by the Rules of Professional This is essentially the ABA Model Rule, except that the Conduct notwithstanding that the lawyer acted at the MR does not include the prohibition against direction of another person. “harassment” nor does it contain the modifier “knowingly” at the end of paragraph (a) which makes it (b) A subordinate lawyer does not violate the Rules of clear that a lawyer is not responsible for inadvertently Professional Conduct if that lawyer acts in accordance violating the legal rights of another person in the course with a supervisory lawyer's reasonable resolution of an of obtaining evidence. arguable question of professional duty. Adopted 01/01/05 LAW FIRMS AND ASSOCIATIONS Defined Terms (see Rule 1.0): RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, “Reasonable” AND SUPERVISORY LAWYERS Comparison to Oregon Code A lawyer shall be responsible for another lawyer's Paragraph (a) is identical to DR 1-102(C). violation of these Rules of Professional Conduct if: Paragraph (b) has no equivalent in the Oregon Code. ( a) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or Comparison to ABA Model Rule ( b) the lawyer is a partner or has comparable This is the ABA Model Rule. managerial authority in the law firm in which the other lawyer practices, or has direct supervisory RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER authority over the other lawyer, and knows of the ASSISTANCE conduct at a time when its consequences can be With respect to a nonlawyer employed or retained, avoided or mitigated but fails to take reasonable supervised or directed by a lawyer: remedial action. (a) a lawyer having direct supervisory authority over the Adopted 01/01/05 nonlawyer shall make reasonable efforts to ensure that Defined Terms (see Rule 1.0): the person's conduct is compatible with the professional obligations of the lawyer; and “Knowledge” “Knows” (b) except as provided by Rule 8.4(b), a lawyer shall be “Law Firm” responsible for conduct of such a person that would be “Partner” a violation of the Rules of Professional Conduct if “Reasonable” engaged in by a lawyer if: Comparison to Oregon Code (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or This rule is essentially the same as DR 1-102(B) although it specifically applies to partners or others with (2) the lawyer is a partner or has comparable comparable managerial authority, as well as lawyers with managerial authority in the law firm in which the supervisory authority. person is employed, or has direct supervisory authority over the person, and knows of the Comparison to ABA Model Rule conduct at a time when its consequences can be ABA Model Rule 5.1 contains two additional provisions. avoided or mitigated but fails to take reasonable The first requires partners and lawyers with comparable remedial action. managerial authority to make reasonable efforts to Adopted 01/01/05 ensure that the firm has in place measures giving reasonable assurance that all lawyers in the firm conform Amended 01/01/14: Title changed from “Assistants” to to the Rules of Professional Conduct. The second “Assistance” in recognition of the broad range of requires lawyers having direct supervisory authority over nonlawyer services that can be utilized in rendering legal another lawyer to make reasonable efforts to ensure that services.

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Defined Terms (see Rule 1.0): referral service, including fees calculated as a percentage of legal fees received by the lawyer “Knowledge” from a referral. “Knows” “Law firm” (b) A lawyer shall not form a partnership with a ‘Partner” nonlawyer if any of the activities of the partnership “Reasonable” consist of the practice of law. Comparison to Oregon Code (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render This rule has no counterpart in the Oregon Code. legal services for another to direct or regulate the Paragraph ( a) is somewhat similar to the requirement in lawyer's professional judgment in rendering such legal DR 4-101(D), but broader because not limited to services. disclosure of confidential client information. (d) A lawyer shall not practice with or in the form of a Paragraph ( b) applies the requirements of DR 1-102(B) professional corporation or association authorized to to nonlawyer personnel. An exception by cross-reference practice law for a profit, if: to Rule 8.4(b) is included to avoid conflict with the rule that was formerly DR 1-102(D). (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a Comparison to ABA Model Rule lawyer may hold the stock or interest of the lawyer This is similar to the ABA Model Rule, although the for a reasonable time during administration; Model Rule also requires law firm partners and other (2) a nonlawyer is a corporate director or officer lawyers with comparable managerial authority to make thereof or occupies the position of similar reasonable efforts to ensure that the firm has in place responsibility in any form of association other than measures giving reasonable assurance that the conduct a corporation, except as authorized by law; or of nonlawyer assistants is compatible with the professional obligations of lawyers. Also, the Model Rule (3) a nonlawyer has the right to direct or control does not have the “except as provided in 8.4(b)” the professional judgment of a lawyer. language in paragraph (b), since the Model Rule has no (e) A lawyer shall not refer a client to a nonlawyer counterpart to DR 1-102(D). with the understanding that the lawyer will receive a fee, commission or anything of value in exchange for RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER the referral, but a lawyer may accept gifts in the (a) A lawyer or law firm shall not share legal fees with a ordinary course of social or business hospitality. nonlawyer, except that: Adopted 01/01/05 (1) an agreement by a lawyer with the lawyer's firm Amended 01/01/13: Paragraph (a)(5) added. or firm members may provide for the payment of money, over a reasonable period of time after the Defined Terms (see Rule 1.0): lawyer's death, to the lawyer's estate or to one or “Firm” more specified persons. “Law firm” “Matter” (2) a lawyer who purchases the practice of a “Partner” deceased, disabled, or disappeared lawyer may, “Reasonable” pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the Comparison to Oregon Code agreed-upon purchase price. Paragraph (a)(1) is the same as DR 3-102(A)(1). (3) a lawyer or law firm may include nonlawyer Paragraph (a)(2) is similar to DR 3-102(A)(2), except that employees in a compensation or retirement plan, it addresses the purchase of a deceased, disabled or even though the plan is based in whole or in part departed lawyer’s practice and payment of an agreed on a profit-sharing arrangement. price, rather than only authorizing reasonable (4) a lawyer may share court-awarded legal fees compensation for services rendered by a deceased with a nonprofit organization that employed, lawyer. Paragraph (a)(3) is identical to DR 3-102(A)(3). retained or recommended employment of the Paragraphs (a)(4) and 9a)(5) have no counterpart in the lawyer in the matter; and Oregon Code. (5) a lawyer may pay the usual charges of a bar- Paragraph (b) is identical to DR 3-103. sponsored or operated not-for-profit lawyer Paragraph (c) is identical to DR 5-108(B).

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Paragraph (d) is essentially identical to DR 5-108(D). (5) are provided to the lawyer’s employer or its organizational affiliates and are not services for Paragraph (e) is the same as DR 2-105, approved by the which the forum requires pro hac vice admission. Supreme Court in April 2003. (d) A lawyer admitted in another jurisdiction, and not Comparison to ABA Model Rule disbarred or suspended from practice in any This is the ABA Model Rule with the addition of jurisdiction, may provide legal services in this paragraphs (a)(5) and (e), which have no counterpart in jurisdiction that are services that the lawyer is the Model Rule. Paragraph (a)(5) is similar to MR authorized to provide by federal law or other law of this 7.2(b)(2). jurisdiction. (e) A lawyer who provides legal services in connection RULE 5.5 UNAUTHORIZED PRACTICE OF LAW; with a pending or potential arbitration proceeding to be MULTIJURISDICTIONAL PRACTICE held in his jurisdiction under paragraph (c)(3) of this (a) A lawyer shall not practice law in a jurisdiction in rule must, upon engagement by the client, certify to the violation of the regulation of the legal profession in that Oregon State Bar that: jurisdiction, or assist another in doing so. (1) the lawyer is in good standing in every (b) A lawyer who is not admitted to practice in this jurisdiction in which the lawyer is admitted to jurisdiction shall not: practice; and (1) except as authorized by these Rules or other (2) unless the lawyer is in-house counsel or an law, establish an office or other systematic and employee of a government client in the matter, continuous presence in this jurisdiction for the that the lawyer practice of law; or (i) carries professional liability insurance (2) hold out to the public or otherwise represent substantially equivalent to that required of Oregon that the lawyer is admitted to practice law in this lawyers, or jurisdiction. (ii) has notified the lawyer’s client in writing that (c) A lawyer admitted in another jurisdiction, and not the lawyer does not have such insurance and that disbarred or suspended from practice in any Oregon law requires Oregon lawyers to have such jurisdiction, may provide legal services on a temporary insurance. basis in this jurisdiction that: The certificate must be accompanied by the (1) are undertaken in association with a lawyer who administrative fee for the appearance established by is admitted to practice in this jurisdiction and who the Oregon State Bar and proof of service on the actively participates in the matter; arbitrator and other parties to the proceeding. (2) are in or reasonably related to a pending or Adopted 01/01/05 potential proceeding before a tribunal in this or Amended 01/01/12: Paragraph (e) added. another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to Amended 02/XX/15: Phrase “United States” deleted from appear in such proceeding or reasonably expects to paragraphs (c) and (d), to allow foreign-licensed lawyers be so authorized; to engage in temporary practice as provided in the rule. (3) are in or reasonably related to a pending or Defined Terms (see Rule 1.0): potential arbitration, mediation, or other alternate “Matter” dispute resolution proceeding in this or another “Reasonably” jurisdiction, if the services arise out of or are “Tribunal” reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to Comparison to Oregon Code practice and are not services for which the forum Paragraph (a) contains the same prohibitions as DR 3- requires pro hac vice admission; 101(A) and (B). (4) are not within paragraphs (c)(2) or (c)(3) and Paragraph (b), (c), (d) and (e) have no counterpart in the arise out of or are reasonably related to the Oregon Code. lawyer's practice in a jurisdiction in which the lawyer is admitted to practice; or Comparison to ABA Model Rule

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Paragraphs (a), (b) and (c)(1)-(4) are identical to the (b) where the decision or action could have a material Model Rule. MR 5.5(d) includes what is (c)(5) in the adverse effect on the representation of a client of the Oregon rule. Paragraph (e) has no counterpart in the organization whose interests are adverse to a client of Model Rule. the lawyer. Adopted 01/01/05 RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE Defined Terms (see Rule 1.0): A lawyer shall not participate in offering or making: “Knowingly” (a) a partnership, shareholders, operating, employment, “Law firm” or other similar type of agreement that restricts the right of a lawyer to practice after termination of the Comparison to Oregon Code relationship, except an agreement concerning benefits This rule is similar to DR 5-108(C)(10 and (2). upon retirement; or Comparison to ABA Model Rule (b) an agreement in which a direct or indirect restriction on the lawyer's right to practice is part of the This is the ABA Model Rule. settlement of a client controversy. RULE 6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT Adopted 01/01/05 INTERESTS Comparison to Oregon Code A lawyer may serve as a director, officer or member of Paragraph (a) is similar to DR 2-108(A), but in addition to an organization involved in reform of the law or its partnership or employment agreements, includes administration, notwithstanding that the reform may shareholders and operating “or other similar type of affect the interest of a client of the lawyer. When the agreements,” in recognition of the fact that lawyers lawyer knows that the interest of a client may be associate together in organizations other than traditional materially benefited by a decision in which the lawyer law firm partnerships. participates, the lawyer shall disclose that fact but need not identify the client. Paragraph (b) is similar to DR 2-108(B). Adopted 01/01/05 Comparison to ABA Model Rule Defined Terms (see Rule 1.0): This is the ABA Model Rule with the addition of the words “direct or indirect” in paragraph (b) to address “Knows” agreements that are not strictly part of the “settlement Comparison to Oregon Code agreement.” This rule is similar to DR 5-108(C)(3). RULE 5.7 [RESERVED] Comparison to ABA Model Rule This is the ABA Model Rule. PUBLIC SERVICE RULE 6.5 NONPROFIT AND COURT-ANNEXED LIMITED RULE 6.1 [RESERVED] LEGAL SERVICES PROGRAMS RULE 6.2 [RESERVED] (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, RULE 6.3 MEMBERSHIP IN LEGAL SERVICES provides short-term limited legal services to a client ORGANIZATION without expectation by either the lawyer or the client that the lawyer will provide continuing representation A lawyer may serve as a director, officer or member of a in the matter: legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the (1) is subject to Rule 1.7 and 1.9(a) only if the organization serves persons having interests adverse to lawyer knows that the representation of the client a client of the lawyer. The lawyer shall not knowingly involves a conflict of interest; and participate in a decision or action of the organization: (2) is subject to Rule 1.10 only if the lawyer knows (a) if participating in the decision or action would be that another lawyer associated with the lawyer in a incompatible with the lawyer's obligations to a client law firm is disqualified by Rule 1.7 or 1.9(a) with under Rule 1.7; or respect to the matter.

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(b) Except as provided in paragraph (a)(2), Rule 1.10 is (b) A lawyer shall not give anything of value to a person inapplicable to a representation governed by this Rule. for recommending the lawyer's services except that a lawyer may Adopted 01/01/05 (1) pay the reasonable costs of advertisements or Defined Terms (see Rule 1.0): communications permitted by this Rule; “Knows” (2) pay the usual charges of a legal service plan or a “Law firm” lawyer referral service; and “Matter” (3) pay for a law practice in accordance with Rule 1.17. Comparison to Oregon Code (c) Any communication made pursuant to this rule shall This rule has no equivalent in the Oregon Code. It was include the name and contact information of at least adopted by the ABA in 2002 to address concerns that one lawyer or law firm responsible for its content. strict application of conflict of interest rules might be deterring lawyers from volunteering in programs that Adopted 01/01/05 provide short-term limited legal services to clients under Amended 01/01/14: Revised to track more closely Model the auspices of a non-profit or court-annexed program. Rule 7.2 and eliminate redundant language. Comparison to ABA Model Rule Amended 01/01/17: Revised to remove “not-for-profit” This is the ABA Model Rule. from (2) and to require listing “contact information” in lieu of “office address.” INFORMATION ABOUT LEGAL SERVICES Defined Terms (see Rule 1.0): RULE 7.1 COMMUNICATION CONCERNING A LAWYER'S SERVICES “Law firm” A lawyer shall not make a false or misleading Comparison to Oregon Code communication about the lawyer or the lawyer's This rule retains DR 2-103’s permission for advertising in services. A communication is false or misleading if it various media, provided the communications are not contains a material misrepresentation of fact or law, or false or misleading and do not involve improper in- omits a fact necessary to make the statement person contact. It retains the prohibition against paying considered as a whole not materially misleading. another to recommend or secure employment, with the Adopted 01/01/05 exception of a legal service plan or not-for-profit lawyer referral service. The rule also continues the requirement Amended 12/01/06: Paragraph (a)(5) reworded to that communications contain the name and office conform to former DR 2-101(A)(5). address of the lawyer or firm. Amended 01/01/14: Model Rule 7.1 language substituted Comparison to ABA Model Rule for former RPC 7.1. This rule is drawn from and is very similar to the ABA Comparison to Oregon Code Model Rule, except that the MR allows payment only to a The rule retains the essential prohibition against false or lawyer referral service approved by an appropriate misleading communications, but not the specifically regulatory agency. The MR also permits reciprocal enumerated types of communications deemed referral agreements between lawyers and between misleading. lawyers and nonlawyer professionals, which is directly contradictory to Oregon RPC 5.4(e). Comparison to ABA Model Rule This is the ABA Model Rule. RULE 7.3 SOLICITATION OF CLIENTS (a) A lawyer shall not by in-person, live telephone or RULE 7.2 ADVERTISING real-time electronic contact solicit professional (a) Subject to the requirements of Rules 7.1 and 7.3, a employment when a significant motive for the lawyer's lawyer may advertise services through written, doing so is the lawyer's pecuniary gain, unless the recorded or electronic communication, including public person contacted: media. (1) is a lawyer; or

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(2) has a family, close personal, or prior RULE 7.4 [RESERVED] professional relationship with the lawyer. RULE 7.5 FIRM NAMES AND LETTERHEADS (b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by (a) A lawyer shall not use a firm name, letterhead or in-person, telephone or real-time electronic contact other professional designation that violates Rule 7.1. A even when not otherwise prohibited by paragraph (a), trade name may be used by a lawyer in private practice if: if it does not imply a connection with a government agency or with a public or charitable legal services (1) the lawyer knows or reasonably should know organization and is not otherwise in violation of Rule that the physical, emotional or mental state of the 7.1. target of the solicitation is such that the person could not exercise reasonable judgment in (b) A law firm with offices in more than one jurisdiction employing a lawyer; may use the same name or other professional designation in each jurisdiction, but identification of the (2) the target of the solicitation has made known to lawyers in an office of the firm shall indicate the the lawyer a desire not to be solicited by the jurisdictional limitations on those not licensed to lawyer; or practice in the jurisdiction where the office is located. (3) the solicitation involves coercion, duress or (c) The name of a lawyer holding a public office shall not harassment. be used in the name of a law firm, or in communications (c) Notwithstanding the prohibitions in paragraph (a), a on its behalf, during any substantial period in which the lawyer may participate with a prepaid or group legal lawyer is not actively and regularly practicing with the service plan operated by an organization not owned or firm. directed by the lawyer that uses in-person or telephone (d) Lawyers may state or imply that they practice in a contact to solicit memberships or subscriptions for the partnership or other organization only when that is a plan from persons who are not known to need legal fact. services in a particular matter covered by the plan. (e) A lawyer may be designated “Of Counsel” on a Adopted 01/01/05 letterhead if the lawyer has a continuing professional Amended 01/01/14: The title is changed and the phrase relationship with a lawyer or law firm, other than as “target of the solicitation” or the word “anyone” is partner or associate. A lawyer may be designated as substituted for “prospective client” to avoid confusion “General Counsel” or by a similar professional reference with the use of the latter term in RPC 1.8. The phrase on stationery of a client if the lawyer of the lawyer’s “Advertising Material” is substituted for “Advertising” in firm devotes a substantial amount of professional time paragraph (c). in the representation of the client. Amended 01/01/17: Deleting requirement that lawyer Adopted 01/01/05 place “Advertising Material” on advertising. Amended 01/01/14: The rule was modified to mirror the Defined Terms (see Rule 1.0): ABA Model Rule. “Electronic communication” Defined Terms (see Rule 1.0): “Known” “Firm” “Knows” “Law firm” “Matter” “Partner” “Reasonable” “Substantial” “Reasonably should know” “Written” Comparison to Oregon Code Comparison to Oregon Code This rule retains much of the essential content of DR 2- 102. This rule incorporates elements of DR 2-101(D) and (H) and DR 2-104. Comparison to ABA Model Rule Comparison to ABA Model Rule This is the Model Rule. This rule closely mirrors the Model Rule, although the MR has no counterpart to paragraph (b)(1).

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RULE 7.6 [RESERVED] matter.” Paragraph (a)(2) replaces DR 1-103(C) but requires only that a lawyer respond rather than “cooperate.” MAINTAINING THE INTEGRITY OF THE PROFESSION Paragraph (b) is the same as DR 1-103(D). It is placed RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS here because it pertains to the obligations of a lawyer regarding the lawyer’s own professional conduct. (a) An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in Paragraph (c) is the same as DR 1-103(F). It is placed here connection with a disciplinary matter, shall not: because it pertains to the obligations of a lawyer regarding the lawyer’s own professional conduct. (1) knowingly make a false statement of material fact; or Comparison to ABA Model Rule (2) fail to disclose a fact necessary to correct a Paragraph (a) is identical to Model Rule 8.1. Paragraphs misapprehension known by the person to have (b) and (c) have no counterpart in the Model Rules and arisen in the matter, or knowingly fail to respond to are taken from the Oregon Code. a lawful demand for information from an admissions or disciplinary authority, except that RULE 8.2 JUDICIAL AND LEGAL OFFICIALS this rule does not require disclosure of information (a) A lawyer shall not make a statement that the lawyer otherwise protected by Rule 1.6. knows to be false or with reckless disregard to its truth (b) A lawyer admitted to practice in this state shall, or falsity concerning the qualifications or integrity of a within 30 days after receiving notice thereof, report in judge or adjudicatory officer , or of a candidate for writing to the disciplinary counsel of the Oregon State election or appointment to a judicial or other Bar the commencement against the lawyer of any adjudicatory office. disciplinary proceeding in any other jurisdiction. (b) A lawyer who is a candidate for judicial office shall (c) A lawyer who is the subject of a complaint or referral comply with the applicable provisions of the Code of to the State Lawyers Assistance Committee shall, Judicial Conduct. subject to the exercise of any applicable right or Adopted 01/01/05 privilege, cooperate with the committee and its designees, including: Defined Terms (see Rule 1.0): (1) responding to the initial inquiry of the “Knows” committee or its designees; Comparison to Oregon Code (2) furnishing any documents in the lawyer's Paragraph (a) is essentially the same as DR 8-102(A) and possession relating to the matter under (B), although the Oregon rule prohibits investigation by the committee or its designees; “accusations” rather than “statements” and applies only (3) participating in interviews with the committee to statements about the qualifications of the person. or its designees; and Comparison to ABA Model Rule (4) participating in and complying with a remedial This is the ABA Model Rule, except that the Model Rule program established by the committee or its also prohibits statements pertaining to “other legal designees. officers.” Adopted 01/01/05 RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT Defined Terms (see Rule 1.0): (a) A lawyer who knows that another lawyer has “Knowingly” committed a violation of the Rules of Professional “Known” Conduct that raises a substantial question as to that “Matter” lawyer's honesty, trustworthiness or fitness as a lawyer “Writing” in other respects shall inform the Oregon State Bar Comparison to Oregon Code Client Assistance Office. Paragraph (a) replaces DR 1-101, but is broader because (b) A lawyer who knows that a judge has committed a the Oregon rule applies only to misconduct in connection violation of applicable rules of judicial conduct that with the lawyer’s own or another person’s application for raises a substantial question as to the judge’s fitness for admission and this rule applies to any “disciplinary office shall inform the appropriate authority.

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(c) This rule does not require disclosure of information (3) engage in conduct involving dishonesty, fraud, otherwise protected by Rule 1.6 or ORS 9.460(3), or deceit or misrepresentation that reflects adversely apply to lawyers who obtain such knowledge or on the lawyer’s fitness to practice law; evidence while: (4) engage in conduct that is prejudicial to the (1) acting as a member, investigator, agent, administration of justice; or employee or as a designee of the State Lawyers (5) state or imply an ability to influence improperly Assistance Committee; a government agency or official or to achieve (2) acting as a board member, employee, results by means that violate these Rules or other investigator, agent or lawyer for or on behalf of the law, or Professional Liability Fund or as a Board of (6) knowingly assist a judge or judicial officer in Governors liaison to the Professional Liability Fund; conduct that is a violation of applicable rules of or judicial conduct or other law. (3) participating in the loss prevention programs of (7) in the course of representing a client, knowingly the Professional Liability Fund, including the intimidate or harass a person because of that Oregon Attorney Assistance Program. person’s race, color, national origin, religion, age, Adopted 01/01/05 sex, gender identity, gender expression, sexual orientation, marital status, or disability. Defined Terms (see Rule 1.0): (b) Notwithstanding paragraphs (a)(1), (3) and (4) and “Knows” Rule 3.3(a)(1), it shall not be professional misconduct “Substantial” for a lawyer to advise clients or others about or to Comparison to Oregon Code supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, This rule replaces DR 1-103(A) and (E). Paragraph (a) is provided the lawyer's conduct is otherwise in essentially the same as DR 1-103(A), although the compliance with these Rules of Professional Conduct. exception for confidential client information is found in "Covert activity," as used in this rule, means an effort to paragraph (c). Also, the rule now requires that obtain information on unlawful activity through the use misconduct be reported to the OSB Client Assistance of misrepresentations or other subterfuge. "Covert Office, to conform to changes in the Bar Rules of activity" may be commenced by a lawyer or involve a Procedure that were effective August 1, 2003. lawyer as an advisor or supervisor only when the lawyer Paragraph (b) has no counterpart in the Oregon Code, in good faith believes there is a reasonable possibility although the obligation might be inferred from DR 1- that unlawful activity has taken place, is taking place or 103(A). will take place in the foreseeable future. Paragraph (c) incorporates the exception for information (c) Notwithstanding paragraph (a)(7), a lawyer shall not protected by rule and statute. It also incorporates the be prohibited from engaging in legitimate advocacy exception contained in DR 1-103(E). with respect to the bases set forth therein. Comparison to ABA Model Rule Adopted 01/01/05 This is essentially the ABA Model Rule, expanded slightly. Amended 12/01/06: Paragraph (a)(5) added. Paragraph (c) includes a reference to ORS 9.460(3) to Amended 02/XX/15: Paragraphs (a)(7) and (c) added. parallel the exceptions in DR 1-103(A). Paragraph (c) in the Model Rule refers only to “information gained…while Defined Terms (see Rule 1.0): participating in an approved lawyer assistance program.” “Believes” “Fraud” RULE 8.4 MISCONDUCT “Knowingly” (a) It is professional misconduct for a lawyer to: “Reasonable” (1) violate the Rules of Professional Conduct, Comparison to Oregon Code knowingly assist or induce another to do so, or do This rule is essentially the same as DR 1-102(A). so through the acts of another; Paragraph (b) retains DR 1-102(D). (2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

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not the lawyer retains authority to practice law in Oregon Comparison to ABA Model Rule and regardless of where the lawyer resides. Paragraphs (a)(1) through (6) are the same as Model Rule BR 1.4(b)(1) is essentially the same as 8.5(b)(1). 8.4(a) through (f), except that MR 8.4(a) also prohibits attempts to violate the rules. Paragraph (a)(7) reflects BR 1.4(b)(2) applies the Oregon Code if the lawyer is language in Comment [3] of the Model Rule. licensed only in Oregon. If the lawyer is licensed in Oregon and another jurisdiction, the rules of the Paragraphs (b) and (d) have no counterpart in the Model jurisdiction in which the lawyer principally practices Rule. apply, or if the conduct has its predominant effect in another jurisdiction in which the lawyer is licensed, then RULE 8.5 DISCIPLINARY AUTHORITY; CHOICE OF LAW the rules of that jurisdiction will apply. (a) Disciplinary Authority. A lawyer admitted to practice Comparison to ABA Model Rule in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's This is the ABA Model Rule, as amended in 2002 in conduct occurs. A lawyer not admitted in this conjunction with the adoption of the amendments to jurisdiction is also subject to the disciplinary authority Rule 5.5 regarding multijurisdictional practice. As of this jurisdiction if the lawyer provides or offers to amended, the rule applies to lawyers not licensed in the provide any legal services in this jurisdiction. A lawyer jurisdiction if they render or offer to render any legal may be subject to the disciplinary authority of both this services in the jurisdiction. jurisdiction and another jurisdiction for the same conduct. RULE 8.6 WRITTEN ADVISORY OPINIONS ON PROFESSIONAL CONDUCT; CONSIDERATION GIVEN IN (b) Choice of Law. In any exercise of the disciplinary DISCIPLINARY PROCEEDINGS authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows: (a) The Oregon State Bar Board of Governors may issue formal written advisory opinions on questions under (1) for conduct in connection with a matter pending these Rules. The Oregon State Bar Legal Ethics before a tribunal, the rules of the jurisdiction in Committee and General Counsel’s Office may also issue which the tribunal sits, unless the rules of the informal written advisory opinions on questions under tribunal provide otherwise; and these Rules. The General Counsel's Office of the Oregon (2) for any other conduct, the rules of the State Bar shall maintain records of both OSB formal and jurisdiction in which the lawyer's conduct occurred, informal written advisory opinions and copies of each or, if the predominant effect of the conduct is in a shall be available to the Oregon Supreme Court, different jurisdiction, the rules of that jurisdiction Disciplinary Board, State Professional Responsibility shall be applied to the conduct. A lawyer shall not Board, and Disciplinary Counsel. The General Counsel's be subject to discipline if the lawyer's conduct Office may also disseminate the bar's advisory opinions conforms to the rules of a jurisdiction in which the as it deems appropriate to its role in educating lawyers lawyer reasonably believes the predominant effect about these Rules. of the lawyer's conduct will occur. (b) In considering alleged violations of these Rules, the Adopted 01/01/05 Disciplinary Board and Oregon Supreme Court may consider any lawyer's good faith effort to comply with Defined Terms (see Rule 1.0): an opinion issued under paragraph (a) of this rule as: “Believes” (1) a showing of the lawyer's good faith effort to “Matter” comply with these Rules; and “Reasonably believes” “Tribunal” (2) a basis for mitigation of any sanction that may be imposed if the lawyer is found to be in violation Comparison to Oregon Code of these Rules. This rule has no counterpart in the Oregon Code. A (c) This rule is not intended to, and does not, preclude similar version based on former ABA Model Rule 8.5 was the Disciplinary Board or the Oregon Supreme Court adopted by the Supreme Court in 1996 as Bar Rule of from considering any other evidence of either good Procedure 1.4. faith or basis for mitigation in a bar disciplinary BR 1.4(a) specifically provides that the Supreme Court’s proceeding. jurisdiction over a lawyer’s conduct continues whether or Adopted 01/01/05

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Defined Terms (see Rule 1.0): paragraph (a), rather than only to “General Counsel,” to make it clear that opinions of assistant general counsel “Written” are covered by the rule. Comparison to Oregon Code Comparison to ABA Model Rule This rule is identical to DR 1-105, amended only to refer This rule has no counterpart in the Model Rules. to “General Counsel’s Office” in the second sentence of

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Professionalism in Times of Disruption 4–36 Chapter 4—Reflecting on and Responding to the Changing Landscape

Statement of Professionalism

Adopted by the Oregon State Bar House of Delegates and Approved by the Supreme Court of Oregon effective December 12, 2011

As lawyers, we belong to a profession that serves our clients and the public good. As officers of the court, we aspire to a professional standard of conduct that goes beyond merely complying with the ethical rules. Professionalism is the courage to care about and act for the benefit of our clients, our peers, our careers, and the public good. Because we are committed to professionalism, we will conduct ourselves in a way consistent with the following principles in dealing with our clients, opposing parties, opposing counsel, the courts, and the public.

• I will promote the integrity of the profession and the legal system. • I will work to ensure access to justice for all segments of society. • I will avoid all forms of unlawful or unethical discrimination. • I will protect and improve the image of the legal profession in the eyes of the public. • I will support a diverse bench and bar. • I will promote respect for the courts. • I will support the education of the public about the legal system. • I will work to achieve my client’s goals, while at the same time maintain my professional ability to give independent legal advice to my client. • I will always advise my clients of the costs and potential benefits or risks of any considered legal position or course of action. • I will communicate fully and openly with my client, and use written fee agreements with my clients. • I will not employ tactics that are intended to delay, harass, or drain the financial resources of any party. • I will always be prepared for any proceeding in which I am representing my client. • I will be courteous and respectful to my clients, to adverse litigants and adverse counsel, and to the court. • I will only pursue positions and litigation that have merit. • I will explore all legitimate methods and opportunities to resolve disputes at every stage in my representation of my client. • I will support pro bono activities.

Oregon State Bar • 16037 SW Upper Boones Ferry Rd • PO Box 231935 • Tigard, OR 97281-1935 503.620.0222 or toll-free in Oregon 800.452.8260

Professionalism in Times of Disruption 4–37 Chapter 4—Reflecting on and Responding to the Changing Landscape

Display Your Commitment to Professionalism

The Oregon Bench/Bar Commission on Professionalism is sponsoring the sale of a Certificate of Professionalism, which was adapted from the Statement of Professionalism approved by the Oregon Supreme Court in 2006. A lawyer or law firm may Statement of Professionalism purchase a Certificate of Professionalism by filling out Adopted by the Oregon State Bar House of Delegates and and signing the Certificate and Order Form (available Approved by the Supreme Court of Oregon effective December 12, 2011

below and at www.osbar.org), and returning it to the As lawyers, we belong to a profession that serves our clients and the public good. As officers of the court, we aspire to a professional standard of conduct that goes beyond merely complying with the ethical rules. Professionalism is the courage to care about and act for the benefit of our clients, our Oregon State Bar along with payment. peers, our careers, and the public good. Because we are committed to professionalism, we will conduct ourselves in a way consistent with the following principles in dealing with our clients, opposing parties, opposing counsel, the courts, and the public.

• I will promote the integrity of the profession and the legal system. • I will work to ensure access to justice for all segments of society. • I will avoid all forms of unlawful or unethical discrimination. • I will protect and improve the image of the legal profession in the eyes of the public. Order Form • I will support a diverse bench and bar. • I will promote respect for the courts. • I will support the education of the public about the legal system. • I will work to achieve my client’s goals, while at the same time maintain my professional ability to give independent legal advice to my client. Quantity Ordered • I will always advise my clients of the costs and potential benefits or risks of any considered legal position or course of action. • I will communicate fully and openly with my client, and use written fee agreements with Times per certificate price × $35 my clients. • I will not employ tactics that are intended to delay, harass, or drain the financial resources of any party. • I will always be prepared for any proceeding in which I am representing my client. Total Enclosed 108-4999-073 $ • I will be courteous and respectful to my clients, to adverse litigants and adverse counsel, and to the court. • I will only pursue positions and litigation that have merit. • I will explore all legitimate methods and opportunities to resolve disputes at every stage Send your check or money order, payable in my representation of my client. to the Oregon State Bar, along with this • I will support pro bono activities. Oregon State Bar • 16037 SW Upper Boones Ferry Rd • PO Box 231935 • Tigard, OR 97281-1935 Certification and order form to: 503.620.0222 or toll-free in Oregon 800.452.8260 Oregon State Bar Professionalism Certificate Actual Size 11×14. Printed on quality paper using black P.O. Box 231935 ink, with the title in gold and the classic Oregon State Tigard, OR 97281-1935 Bar logo appearing in the background in green.

Information Certification

Name (please print or type) OSB # - Individual - I certify that I have read the Oregon State Bar Statement of Professionalism Firm Name Phone and the text on the Commitment to Professionalism Certificate, and I pledge that I will practice law in accord with the Statement and Certificate. Street Address (necessary for UPS shipment) Name (please print or type) OSB # City, State, Zip Firm Name Phone

Attorney or firm name to be imprinted on the - Firm - Certificate: (please print or type in the box below, including The undersigned law firm certifies that each lawyer practicing with the all capitalization and punctuation. Do not abbreviate unless the firm has read the Oregon State Bar Statement of Professionalism and the text of the Commitment to Professionalism certificate and will practice abbreviation should be included on the certificate.) law in accord with such Statement and Certificate. Signed on behalf of the firm by

Name (please print or type) OSB #

Firm Name Phone

Professionalism in Times of Disruption 4–38 Chapter 4—Reflecting on and Responding to the Changing Landscape Commitment to Professionalism We are committed to professionalism; we believe that lawyers should solve problems, not create them. Accordingly, we will conduct ourselves in a manner consistent with the following principles:

We will promote integrity and independent judgment. As officers of the court, we will work to support the effectiveness and efficiency of the legal system. We will treat all persons with courtesy, fairness and respect, without regard to any distinguishing personal characteristic such as gender, race, ethnicity, disability, sexual orientation, gender identity or expression, social or economic status, military status, age, national origin, or religion. We will accurately represent the law to the court and our clients, to the best of our abilities. We will accurately represent the facts and our authority to bind the client. We will only pursue litigation, engage in conduct, or take positions that have merit. We will act in a timely fashion. We will support a diverse bench and bar. We will not engage in or condone unlawful or unethical discrimination. We will represent our clients’ best interests while seeking to resolve matters with a minimum of legal expense to all involved. We will explain the fee arrangement to our client at the beginning of the representation. We will support activities to educate the public about the legal system. We will work to ensure access to justice for all segments of society.

Adopted by the Multnomah Bar Association as of June 1, 2004. Updated by the Multnomah Bar Association on May 7, 2014.

Professionalism in Times of Disruption 4–39 Chapter 4—Reflecting on and Responding to the Changing Landscape

MBA Professionalism Statement Order Form

The Professionalism Statement developed by the MBA Professionalism Committee is free for MBA members. The statement is printed on quality 11 x 14” parchment paper and is suitable for framing. A smaller version of the statement is displayed in Multnomah County courtrooms.

Reconfirm your commitment to professionalism; order your professionalism statement today!

Name: Phone: Firm name: Address: City/State/Zip:

I will honor the professionalism statement and display it in a prominent location. Signature:

Return to: Multnomah Bar Association, 620 SW 5th Ave Ste 1220, Portland, OR 97204 y Fax: 503.243.1881 Questions? Call the MBA at 503.222.3275.

Professionalism in Times of Disruption 4–40 Chapter 4—Reflecting on and Responding to the Changing Landscape

CODE OF PRETRIAL AND TRIAL CONDUCT

Permission to reprint Code of Pretrial and Trial Conduct in its entirety has been granted by the American College of Trial Lawyers.

Professionalism in Times of Disruption 4–41 Chapter 4—Reflecting on and Responding to the Changing Landscape

Please accept this copy of the Code of Pretrial and Trial Conduct published by the American College of Trial Lawyers. The development of this Code by the Fellows of the College and its distribution to persons and institutions engaged in all aspects of the administration of justice represents an important part of the execution of the College’s mandate to improve and elevate standards of trial practice, the administration of justice and the ethics of the profession.

The American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years’ experience before they can be considered for Fellowship. Membership in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice.

The College is confident that utilization of this Code in the course of legal proceedings in the courts and as a teaching aid at the Bar and in the nation’s law schools will represent a positive contribution to improving and elevating standards of trial practice, the administration of justice and the ethics of the profession.

NATIONAL OFFICE 19900 MacArthur Blvd. Suite 610 Irvine, CA 92612 t: 949.752.1801 f: 949.752.1674 www.actl.com

Professionalism in Times of Disruption 4–42 Chapter 4—Reflecting on and Responding to the Changing Landscape

Message from the Chief Justice of the United States

For more than fifty years, the American College of Trial Lawyers has promoted professionalism in the conduct of trial litigation. Its authoritative Code of Trial Conduct, first published in 1956, has served as an enduring landmark in the development of professional standards for advocates.

The College continues those efforts through the publication of its revised and enlarged Code of Pretrial and Trial Conduct. This comprehensive resource sets out aspirational principles to guide litigators in all aspects of their work as advocates of client interests. The Code looks beyond the minimum ethical requirements that every lawyer must follow and instead identifies those practices that elevate the profession and contribute to fairness in the administration of justice.

As Justice Frankfurter noted, “An attorney actively engaged in the conduct of a trial is not merely another citizen. He is an intimate and trusted and essential part of the machinery of justice, an ‘officer of the court’ in the most compelling sense.” I encourage lawyers who engage in trial work to observe and advance the principles that the College has set forth in this volume.

I commend the American College of Trial Lawyers for its leadership in defining and refining the standards of professionalism that are vital to our system of justice.

John G. Roberts, Jr. Chief Justice of the United States

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“ I hold every man a debtor to his profession; from the which, as men of course do seek to receive countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and ornament thereto.”

 Sir Francis Bacon 

Professionalism in Times of Disruption 4–44 Chapter 4—Reflecting on and Responding to the Changing Landscape AmericAn college of TriAl lAwyers

CODE OF PRETRIAL AND TRIAL CONDUCT

Approved by the Board of Regents, June 2009

Professionalism in Times of Disruption 4–45 Chapter 4—Reflecting on and Responding to the Changing Landscape Table of Contents

Page Forward...... 1 Preamble...... 2 Qualities.of.a.Trial.Lawyer...... 3 Obligations.to.Clients...... 3 Obligations.to.Colleagues...... 4 Obligations.to.the.Court...... 4 Obligations.to.the.System.of.Justice...... 5 Motions.and.Pretrial.Procedure...... 6 Discovery...... 8 Relationships.with.Witnesses.and.Litigants...... 9 Trial...... 11

CODE OF PRETRIAL AND TRIAL CONDUCT

Professionalism in Times of Disruption 4–46 Chapter 4—Reflecting on and Responding to the Changing Landscape Forward

he Legal Ethics and Professionalism Committee of the American College of Trial Lawyers (the T“College”) is charged with the following mandate: To advance, improve, and promote ethical standards and professionalism in the trial bar in all its aspects in both the United States and Canada as well as to engage in such other activities as may be directed by the Board of Regents.

All jurisdictions have codes of conduct that prescribe minimum standards for disciplinary purposes. There is no need here to duplicate such standards. This ACTL Code represents an attempt by the College to set down aspirational, rather than minimal, guidelines for trial lawyers and judges. The problem in trial practice today is not that lawyers violate the ethical rules, although some lawyers do. Most lawyers know the rules and try to comply. The real problem is the gradual corrosion of the profession’s traditional aspirations, which are:

• Honor for values such as honesty, respect and courtesy toward litigants, opposing advocates and the court;

• A distaste for meanness, sharp practice, and unnecessarily aggressive behavior;

• Engagement in public service;

• A focus on the efficient, fair preparation and trial of cases; and

• A role as agent for counseling and for the resolution of disputes.

Despite what the profession says, the profession often acts as if these values are inconsistent with effective advocacy in an adversary system of justice. The College is uniquely positioned to lead the way in changing these attitudes because it strives to offer Fellowship only to those lawyers who embody the skill and values to which they and the profession should aspire. The College cannot lead by focusing on the lowest floor of acceptable behavior.

The College sees the new code as one that can be endorsed by courts, that can be profitably used in training programs by law schools and bar organizations, and that describes the values that the Fellows of the American College of Trial Lawyers endorse and practice daily.

The new Code of Pretrial and Trial Conduct is a product that the College believes can be endorsed by courts and the profession as articulating the level of conduct to which all members of our profession should aspire. If trial lawyers practice these principles the profession will begin a process of change that benefits lawyers, litigants, and our system of justice.

CODE OF PRETRIAL AND TRIAL CONDUCT 1

Professionalism in Times of Disruption 4–47 Chapter 4—Reflecting on and Responding to the Changing Landscape Preamble

dmission to the Bar is a high honor, and those lawyers who devote their lives to presenting cases in the courts are truly privileged. Trial lawyers are officers of the court. They are entrusted with A a central role in the administration of justice in our society necessary to democracy. Lawyers who engage in trial work have a special responsibility to strive for prompt, efficient, ethical, fair and just disposition of litigation. The American College of Trial Lawyers believes that, as officers of the court, trial lawyers must conduct themselves in a manner that reflects the dignity, fairness, and seriousness of purpose of the system of justice they serve. They must be role models of skill, honesty, respect, courtesy, and fairness consistent with their obligations to the client and the court.

Trial lawyers have a duty to conduct themselves so as to preserve the right to a fair trial, one of the most basic of all constitutional guarantees, while courageously, vigorously and diligently representing their clients and applying the relevant legal principles to the facts as found. Without courtesy, fairness, candor, and order in the pretrial process and in the courtroom, reason cannot prevail and constitutional rights to justice, liberty, freedom and equality under law will be jeopardized. The dignity, decorum and courtesy that have traditionally characterized the courts are not empty formalities. They are essential to an atmosphere in which justice can be done.

No client, corporate or individual, however powerful, nor any cause, civil, criminal or political, however important, is entitled to receive, nor should any lawyer render, any service or advice encourag- ing or inviting disrespect of the law or of the judicial office. No lawyer may sanction or invite corruption of any person exercising a public office or private trust. No lawyer may condone in any way deception or betrayal of the court, fellow members of the Bar, or the public. A lawyer advances the honor of the profession and the best interests of the client when a lawyer embodies and encourages an honest and proper respect for the law, its institutions and officers. Above all, a lawyer finds the highest honor in a deserved reputation as an officer for justice, faithful to private trust and to public duty, and as an honest person.

This Code of Pretrial and Trial Conduct (“the Code”) is not intended to supplant any local rules, procedural rules, or rules of professional conduct. This Code aims to provide aspirational guidance for trial lawyers. It sets forth a standard above the ethical minimum – a standard of conduct worthy of the privileges and responsibilities conferred on those who have sworn to serve our system of justice.

This Code is intended to provide guidance for a lawyer’s professional conduct except insofar as the applicable law, code or rules of professional conduct in a particular jurisdiction require otherwise. It is an aspirational guide for trial lawyers and should not give rise to a cause of action or sanction, create a presumption that a legal duty has been breached or form the basis for disciplinary proceedings not created under the applicable law, court rules or rules of professional conduct.

CODE OF PRETRIAL AND TRIAL CONDUCT 2

Professionalism in Times of Disruption 4–48 Chapter 4—Reflecting on and Responding to the Changing Landscape CODE OF PRETRIAL AND TRIAL CONDUCT

Qualities of a Trial Lawyer

Trial lawyers are officers of the court. They are entrusted with a central role in the administration of justice in our society. Lawyers who engage in trial work have a special responsibility to strive for prompt, efficient, ethical, fair and just disposition of litigation.

Honesty, Competence and Diligence

(a) A lawyer must in all professional conduct be honest, candid and fair.

(b) A lawyer must possess and apply the legal knowledge, skill, thoroughness and preparation necessary for excellent representation.

(c) A lawyer must diligently, punctually and efficiently discharge the duties required by the representation in a manner consistent with the legitimate interests of the client.

Obligations to Clients

A lawyer must provide a client undivided allegiance, good counsel and candor; the utmost application of the lawyer’s learning, skill and industry; and the employment of all appropriate means within the law to protect and enforce legitimate interests of a client. A lawyer may never be influenced directly or indirectly by any consideration of self-interest. A lawyer has an obligation to undertake unpopular causes if necessary to ensure justice. A lawyer must maintain an appropriate professional distance in advising his or her client, in order to provide the greatest wisdom.

Employment and Withdrawal

(a) It is the right of a lawyer to accept employment in any civil case unless such employment is or would likely result in a violation of the rules of professional responsibility, a rule of court or applicable law. It is the lawyer’s right and duty to take all proper actions and steps to preserve and protect the legal merits of the client’s position and claims, and the lawyer should not decline employment in a case on the basis of the unpopularity of the client’s cause or position.

(b) The right of a person accused of a crime to be represented by competent counsel is essential to our system of justice. A lawyer should not decline such representation because of the lawyer’s personal or the community’s opinion of the guilt of the accused or heinousness of the crime. A lawyer must raise all defenses and arguments that should be asserted on the client’s behalf.

Fidelity to the Client’s Interests

A lawyer must not permit considerations of personal or organizational advancement, financial gain, favor with other persons, or other improper considerations to influence the representation of the client.

CODE OF PRETRIAL AND TRIAL CONDUCT 3

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Obligations to Colleagues

A lawyer should be straightforward and courteous with colleagues. A lawyer should be cooperative with other counsel while zealously representing the client. A lawyer must be scrupulous in observing agreements with other lawyers.

Relations with Other Counsel

(a) A lawyer must be courteous and honest when dealing with opposing counsel.

(b) A lawyer should not make disparaging personal remarks or display acrimony toward opposing counsel, and must avoid demeaning or humiliating words in written and oral communication with adversaries.

(c) When practicable and consistent with the client’s legitimate interests and local custom, lawyers should agree to reasonable requests to waive procedural formalities.

(d) The lawyer, and not the client, has the discretion to determine the customary accommodations to be granted opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the client’s rights.

(e) A lawyer must adhere strictly to all written or oral promises to and agreements with opposing counsel, and should adhere in good faith to all agreements implied by the circumstances or by appropriate local custom.

(f) Written communications with opposing counsel may record and confirm agreements and understandings, but must not be written to ascribe to any person a position that he or she has not taken or to create a record of events that have not occurred.

Obligations to the Court

Judges and lawyers each have obligations to the court they serve. A lawyer must be respectful, diligent, candid and punctual in all dealings with the judiciary. A lawyer has a duty to promote the dignity and independence of the judiciary, and protect it against unjust and improper criticism and attack. A judge has a corresponding obligation to respect the dignity and independence of the lawyer, who is also an officer of the court.

Communication with the Court

(a) A lawyer must always show courtesy to and respect for a presiding judge. While a lawyer may be cordial in communicating with a presiding judge in court or in chambers, the lawyer should never exhibit inappropriate familiarity. In social relations with members of the judiciary, a lawyer should take care to avoid any impropriety or appearance of impropriety. In making any communication about a judge, a lawyer should not express or imply that the lawyer has a special relationship or influence with the judge.

(b) A lawyer should never make any attempt to obtain an advantage through improper ex parte communication with a judge or the staff in the judge’s chambers. A lawyer must make every effort to avoid such communication on any substantive matter and any matter that could reasonably

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be perceived as substantive, except as addressed in subpart (c) below. When a lawyer informally communicates with a court, the highest degree of professionalism is required.

(c) If ex parte communication with the court is permitted by applicable rules of ethics and procedure, a lawyer must diligently attempt to notify opposing parties, through their counsel if known, unless genuine circumstances exist that would likely prejudice the client’s rights if notice were given. When giving such notice, the lawyer should advise the opponent of the basis for seeking immediate relief and should make reasonable efforts to accommodate the opponent’s schedule so that the party affected may be represented.

(d) When possible, a lawyer’s communications with the court related to a pending case should be in writing, and copies should be provided promptly to opposing counsel. When circumstances require oral communication with the court, a lawyer must notify opposing counsel of all such communications promptly.

Independence and Impartiality of Judicial Officers and Neutrals

(a) Judges, arbitrators, mediators and other neutrals must maintain their independence and impartiality. They must not allow professional or personal relationships, employment prospects or other improper considerations to influence or appear to influence the discharge of their duties.

(b) A judge must promote the dignity and proper discharge of the duties of the lawyer, who is also an officer of the court entitled to respect and courtesy.

Obligations to the System Of Justice

A lawyer has an obligation to promote the resolution of cases with fairness, efficiency, courtesy, and justice. As an officer of the court and as an advocate in the court, a lawyer should strive to improve the system of justice and to maintain and to develop in others the highest standards of professional behavior.

Devotion to the System of Public Justice

A lawyer must strive at all times to uphold the honor and dignity of the profession. Every lawyer should contribute to the improvement of the system of justice and support those measures that enhance the efficiency, fairness and quality of justice dispensed by the courts. A lawyer should never manifest, or act upon, bias or prejudice toward any person based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.

Pro Bono Publico

A lawyer should personally render public interest legal service and support organizations that provide legal services to persons of limited means by contributing time and resources.

Settlement and Alternative Dispute Resolution

A lawyer must never be reluctant to take a meritorious case to trial if the dispute cannot otherwise be satisfactorily resolved. However, a lawyer must provide the client with alternatives to trial when to do so would be consistent with the client’s best interests. A lawyer should educate clients early in the legal

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process about various methods of resolving disputes without trial, including mediation, arbitration, and neutral case evaluation.

Motions and Pretrial Procedure

A lawyer has an obligation to cooperate with opposing counsel as a colleague in the preparation of the case for trial. Zealous representation of the client is not inconsistent with a collegial relationship with opposing counsel in service to the court. Motions and pretrial practice are often sources of friction among lawyers, which contributes to unnecessary cost and lack of collegiality in litigation. The absence of respect, cooperation, and collegiality displayed by one lawyer toward another too often breeds more of the same in a downward spiral. Lawyers have an obligation to avoid such conduct and to promote a respectful, collegial relationship with opposing counsel.

Scheduling and Granting Extensions for Pretrial Events

(a) A lawyer should schedule pretrial events cooperatively with other counsel as soon as the event can reasonably be anticipated. Lawyers scheduling an event should respect the legitimate obligations of colleagues and avoid disputes about the timing, location and manner of conducting the event.

(b) A lawyer should seek to reschedule an event only if there is a legitimate reason for doing so and not for improper tactical reasons. A lawyer receiving a reasonable request to reschedule an event should make a sincere effort to accommodate the request unless the client’s legitimate interests would be adversely affected.

(c) Scheduling pretrial events and granting requests for extensions of time are properly within the discretion of the lawyer unless the client’s interests would be adversely affected. A lawyer should counsel the client that cooperation among lawyers on scheduling is an important part of the pretrial process and expected by the court. A lawyer should not use the client’s decision on scheduling as justification for the lawyer’s position unless the client’s legitimate interests are affected.

Service of Process, Pleadings and Proposed Orders

(a) The timing, manner, and place of filing, electronic filing or serving papers should never be calculated to delay, embarrass or improperly disadvantage the party being served.

(b) Unless exigent circumstances require otherwise, papers filed in a court must be promptly served upon or made available to opposing parties or counsel.

(c) Papers should not be served in a manner deliberately designed to unfairly shorten an opponent’s time for response or to take other unfair advantage of an opponent.

(d) Service must be made in a manner that affords an opposing party a fair and timely opportunity to respond, unless exigent circumstances legitimately require or applicable rules permit an ex parte application to the court or an abbreviated time for response.

Motion Practice and Other Written Submissions to the Court

(a) Before filing pretrial motions, lawyers should work together to resolve issues and to

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identify matters not in dispute. When motions are necessary, lawyers should cooperate to facilitate the filing, service, and hearing of the motion. Orders submitted to the court must fairly and accurately reflect the requested or actual ruling of the court.

(b) In written submissions and oral presentations, a lawyer should neither engage in ridicule nor sarcasm. Neither should a lawyer ever disparage the integrity, intelligence, morals, ethics, or personal behavior of an opposing party or counsel unless such matters are directly relevant under controlling law.

(c) When documents or data are presented to the court, they must be furnished to opposing counsel in exactly the same format, including identical highlighting or other emphasis.

Pretrial Conferences

(a) A lawyer should seek to reach agreement with opposing counsel to limit the issues to be addressed before and during trial.

(b) A lawyer should determine in advance of a pretrial conference the trial judge’s custom and practices in conducting such conferences.

(c) A lawyer should satisfy all directives of the court set forth in the order setting a pretrial conference and should consult and comply with all local rules and with any specific requirements of the trial judge unless properly challenged when based upon a belief of unfair prejudice to the client.

(d) Before a pretrial conference, a lawyer should ascertain the willingness of the client (and the carrier if an insurer is involved) to participate in alternative dispute resolution.

(e) Unless unavoidable circumstances prevent it, a lawyer representing a party at a pretrial conference must be thoroughly familiar with each aspect of the case, including the pleadings, the evidence, and all potential procedural and evidentiary issues.

(f) A lawyer should alert the court as soon as practicable to scheduling conflicts of clients, experts, and witnesses.

(g) If stipulations are possible for uncontested matters, a lawyer should propose specific stipulations and work with opposing counsel to obtain an agreement in advance of the pretrial conference.

(h) In advance of a final pretrial conference, discovery should be completed, discovery responses should be supplemented, evidentiary depositions should be concluded, and settlement should be explored.

(i) Unless unavoidable circumstances prevent it, the final pretrial conference should be attended by a lawyer who will actually try the case, and, in any event, by a lawyer who is familiar with the case.

(j) At or before a final pretrial conference, a lawyer should alert the court to the need for any pretrial rulings, hearings on motions or other matters requiring action by the court in advance of trial.

(k) At the final pretrial conference, a lawyer should be prepared to advise the court of the status of settlement negotiations and the likelihood of settlement before trial.

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Discovery

A lawyer must conduct discovery as a focused, efficient, and principled procedure to gather and preserve evidence in the pursuit of justice. Discourtesy, obfuscation, and gamesmanship have no proper place in this process.

Discovery Practice

(a) In discovery, as in all other professional matters, a lawyer’s conduct must be honest, courteous, and fair.

(1) A lawyer should conduct discovery efficiently to elicit relevant facts and evidence and not for an improper purpose, such as to harass, intimidate, unduly burden another party or a witness or to introduce unnecessary delay. Overly broad document requests should be avoided by focusing on clear materiality and a sense of cost/benefit.

(2) A lawyer should respond to written discovery in a reasonable manner and should not interpret requests in a strained or unduly restrictive way in an effort to avoid responding or to conceal relevant, nonprivileged information.

(3) Objections to interrogatories, requests for production, and requests for admissions must be made in good faith and must be adequately explained and limited in a manner that fairly apprises the adversary of the material in dispute and the bona fide grounds on which it is being withheld.

(4) When a discovery dispute arises, opposing lawyers must attempt to resolve the dispute by working cooperatively together. Lawyers should refrain from filing motions to compel or for court intervention unless they have genuinely tried, but failed, to resolve the dispute through all reasonable avenues of compromise and resolution.

(5) Lawyers should claim a privilege only in appropriate circumstances. They must not assert a privilege in an effort to withhold or to suppress unprivileged information or to limit or delay a response.

(6) Requests for additional time to respond to discovery should be made as far in advance of the due date as reasonably possible and should not be used for tactical or strategic reasons.

(7) Unless there are compelling reasons to deny a request for additional time to respond to discovery, an opposing lawyer should grant the request without necessitating court intervention. Compelling reasons to deny such a request exist only if the client’s legitimate interests would be materially prejudiced by the proposed delay.

(b) Depositions should be dignified, respectful proceedings for the discovery and preservation of evidence.

(1) A lawyer should limit depositions to those that are necessary to develop the claims or defenses in the pending case or to perpetuate relevant testimony.

(2) A lawyer should conduct a deposition with courtesy and decorum and must

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never verbally abuse or harass the witness, engage in extended or discourteous colloquies with opposing counsel or unnecessarily prolong the deposition.

(3) During a deposition, a lawyer must assert an objection only for a legitimate purpose. Objections must never be used to obstruct questioning, to communicate improperly with the witness, to intimidate, to harass the questioner or to disrupt the search for facts or evidence germane to the case.

Relationships with Witnesses and Litigants

A lawyer must treat all persons involved in a case with candor, courtesy and respect for their role and rights in the legal process.

Communicating with Nonparty Fact Witnesses

(a) A lawyer must carefully comply with all laws and rules of professional responsibility governing communications with persons and organizations with whom the lawyer does not have an attorney-client relationship. A lawyer must be especially circumspect in communications with nonparty fact witnesses who have a relationship to another party.

(b) In dealing with a nonparty who is a fact witness or a potential fact witness, a lawyer must:

(1) disclose the lawyer’s interest or role in the pending matter and avoid misleading the witness about the lawyer’s purpose or interest in the communication;

(2) be truthful about the material facts and the applicable law;

(3) if the nonparty has no counsel, correct any misunderstanding expressed by the nonparty;

(4) treat the nonparty courteously; and

(5) avoid unnecessarily embarrassing, inconveniencing or burdening the nonparty.

(c) If a lawyer is informed that a nonparty fact witness is represented by counsel in the pending matter, the lawyer must not communicate with the witness concerning the pending litigation without permission from that counsel.

(d) If communicating with a nonparty fact witness, the lawyer should be careful to avoid fostering any impression that the lawyer also represents that witness unless the lawyer does, in fact, represent the witness in compliance with the applicable rules of professional responsibility.

(e) A lawyer should not obstruct another party’s access to a nonparty fact witness or induce a nonparty fact witness to evade or ignore process.

(f) A lawyer should not issue a subpoena to a nonparty fact witness except to compel, for a proper purpose, the witness’s appearance at a deposition, hearing, or trial or to obtain necessary documents in the witness’s possession.

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Access to Fact Witnesses and Evidence

(a) Subject to the applicable law and ethical principles, and to constitutional requirements in criminal matters, a lawyer may properly interview any person who is not a retained expert, because a fact witness does not “belong” to any party. A lawyer should avoid any suggestion calculated to induce any witness to suppress evidence or to deviate from the truth. However, without counseling the witness to refrain from cooperating with opposing counsel, a lawyer may advise any witness that he or she does not have a legal duty to submit to an interview or to answer questions propounded by opposing counsel, unless required to do so by judicial or legal process.

(b) A lawyer may never suppress any evidence that the lawyer or the client has a legal obligation to reveal or to produce. In the absence of such an obligation, however, it is not a lawyer’s duty to disclose any work product, evidence or the identity of any witness.

(c) A lawyer must not advise or cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of becoming unavailable as a witness.

(d) Except as provided in subparagraphs (1) and (2) below, a lawyer should not pay, offer to pay or acquiesce in the payment of compensation to a fact witness and may never offer or give any witness anything of value contingent upon the content of the witnesses’ testimony or the outcome of the case. To the extent permitted by the applicable rules of professional responsibility, a lawyer may advance, guarantee or acquiesce in the payment of:

(1) expenses reasonably incurred by a witness in attending or testifying; and

(2) reasonable compensation to a witness for the witness’s loss of time in attending or testifying;

(e) A lawyer may solicit witnesses to a particular event or transaction but not to testify to a particular version of the facts.

Relations with Consultants and Expert Witnesses

(a) In retaining an expert witness, a lawyer should respect the integrity, professional practices and procedures in the expert’s field and must never ask or encourage the expert to compromise the integrity of those practices and procedures for purposes of the particular matter for which the expert has been retained.

(b) A retained expert should be fairly and promptly compensated for all work on behalf of the client. A lawyer must never make compensation contingent in any way upon the substance of the expert’s opinions or written report or upon the outcome of the matter for which the expert has been retained.

c) Other than as expressly permitted by governing law, a lawyer should not communicate with, or seek to communicate with, an expert witness concerning the pending litigation whom the lawyer knows to have been retained by another party, unless express permission is granted by counsel for the retaining party.

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Trial

A lawyer must conduct himself or herself in trial so as to promote respect for the court and preserve the right to a fair trial. A lawyer should avoid any conduct that would undermine the fairness and impartiality of the administration of justice, and seek to preserve the dignity, decorum, justness and courtesy of the trial process.

Relations with Jurors

Lawyers and judges should be respectful of the privacy of jurors during voir dire and after a verdict. A lawyer should abstain from all acts, comments and attitudes calculated to inappropriately curry favor with any juror, such as fawning, flattery, solicitude for the juror’s comfort or convenience or the like.

Courtroom Decorum

(a) Proper decorum in the courtroom is not an empty formality. It is indispensable to the pursuit of justice at trial.

(b) In court, a lawyer should always display a courteous, dignified and respectful attitude toward the judge presiding and should promote respect for and confidence in the judicial office.The judge should be courteous and respectful to the lawyer, who is also an officer of the court.

(c) A lawyer should never engage in discourteous or acrimonious comments or exchanges with opposing counsel. Objections, requests and observations must be addressed to the court.

(d) A lawyer should advise the client and witnesses appearing in the courtroom of the kind of behavior expected and counsel them against engaging in any disrespectful, discourteous or disruptive behavior in the courtroom.

Trial Conduct

(a) A lawyer has the professional obligation to represent every client courageously, vigorously, diligently and with all the skill and knowledge the lawyer possesses. The conduct of a lawyer before the court and with other lawyers should at all times be characterized by civility. A lawyer should present all proper arguments against rulings the lawyer deems erroneous or prejudicial and ensure that a complete and accurate case record is made. In doing so, the lawyer should not be deterred by any fear of judicial displeasure.

(b) In appearing in a professional capacity before a tribunal, a lawyer must not:

(1) improperly obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value; nor should a lawyer counsel, permit or assist another person to do any such act;

(2) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; or

(3) allude to any matter that the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence, assert personal knowledge of facts in issue except when

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testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

(c) A lawyer should not interrupt or interfere with an examination or argument by opposing counsel, except to present a proper objection to the court.

(d) When a court has made an evidentiary ruling, a lawyer should not improperly circumvent that ruling, although a lawyer may seek to make a record of the excluded evidence or a review of the ruling.

(e) A lawyer must not attempt to introduce evidence or to make any argument that the lawyer knows is improper. If a lawyer has doubt about the propriety or prejudicial effect of any disclosure to the jury, the lawyer should request a ruling out of the jury’s hearing.

(f) A lawyer should never engage in acrimonious conversations or exchanges with opposing counsel in the presence of the judge or jury.

(g) Examination of jurors and of witnesses should be conducted from a suitable distance, except when handling evidence or circumstances otherwise require.

(h) Unless local custom dictates otherwise, a lawyer should rise when addressing or being addressed by the judge, except when making brief objections or incidental comments. A lawyer should be attired in a proper and dignified manner in the courtroom.

(i) A lawyer should not in argument assert as a fact any matter that is not supported by evidence. (j) A lawyer must never knowingly misquote or mischaracterize the contents of documentary evidence, the testimony of a witness, the statements or argument of opposing counsel, or the language of a judicial decision.

(k) A lawyer should not propose a stipulation in the jury’s presence unless the lawyer knows or has reason to believe the opposing lawyer will accept it.

(l) A lawyer who receives information clearly establishing that the client has, during the representation, perpetrated a fraud on the court should immediately take the actions required by the appropriate procedural and ethical rules.

Public Statements about Pending Litigation

A case should be tried in the courtroom and not in the media. A lawyer should follow all rules and orders of the court concerning publicity. In the absence of a specific rule or order, a lawyer should not make any extrajudicial statement that may prejudice an adjudicative proceeding.

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American College of Trial Lawyers 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612 (Phone) 949-752-1801 (Fax) 949-752-1674 Website: www.actl.com

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2012 ABA Section of Litigation Corporate Counsel CLE Seminar Hollywood, Florida February14-17, 2013

Taking the High Road: How to Deal Ethically with Bullies Who Don’t Play by the Rules

Moderator: Francine Friedman Griesing, Griesing Law

Panelists: Hon. Joseph A. Greenaway, Jr., United States Court of Appeals, Third Circuit Bacardi L. Jackson, Tucker Law Group Sara Soto, Bressler, Amery & Ross, P.C,

Materials By:

Francine Friedman Griesing, Esq. Ashley Kenney, Esq. 1717 Arch Street • Suite 3630 Philadelphia, Pennsylvania 19103-7013 P.: 215.618.3720 • F.: 215.814.9049 [email protected]

1 Reprinted with permission of author.

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Table of Contents I. SCOPE OF ARTICLE ...... 3

A. Applicable Rules ...... 3 B. The Rationale for and Objective of this Program ...... 3 II. AN OVERVIEW OF ZEALOUS ADVOCACY, PROFESSIONAL MISCONDUCT, AND REPORTING REQUIREMENTS...... 4

A. No Express Duty to Zealously Advocate ...... 4 B. Overly Zealous Advocates Are Rulebreakers ...... 4 C. Rulebreakers Engage in Professional Misconduct ...... 5 D. Our Obligation to Report Professional Misconduct...... 6 III. SPECIFIC INSTANCES OF BULLYING & RULEBREAKING ...... 7

A. Improper Service and Misrepresentations to the Court Regarding Service ...... 7 B. Filing Frivolous Claims ...... 8 C. Abuse of Motion Practice ...... 9 D. Thwarting Discovery or Advancement of the Case ...... 10 1. Suggestive or Argumentative Objections and Refusals to Answer ..... 11 2. Sexist and Racists Remarks at Deposition ...... 12 E. Contacting Client Without Counsel’s Knowledge or Consent ...... 13 F. F. Dishonesty Regarding Settlements ...... 14 IV. TOOLS FOR DEALING WITH UNPROFESSIONAL ADVERSARIES ...... 14

A. Federal Rule of Civil Procedure 11 ...... 14 B. 28 U.S.C. § 1927 ...... 15 C. Federal Rule of Civil Procedure 37 ...... 15 V. CONCLUSION ...... 16

VI. PRACTICE POINTERS ...... 17

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I. SCOPE OF ARTICLE

This program will discuss ethical challenges relating to aggressive client advocacy and appropriate responses to counsel who cross the ethical line. It will cover situations in which opposing counsel makes material misrepresentations to the court, files frivolous claims and motions, thwarts the taking of discovery or the advancement of a case, contacts your client without your knowledge or uses dishonest tactics during settlement negotiations.

A. Applicable Rules

All attorneys are subject to the professional and ethical rules of the forum in which they practice. The rules may be promulgated on the federal, state, local, alternate dispute resolution and/or individual judge level. Although those rules may vary, this program’s primary focus will be the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and the American Bar Association’s (“ABA”) Model Rules of Professional Conduct (“Model Rules”), which have broad application and are a model for many states.

B. The Rationale for and Objective of this Program

As early as the 1980s, the United States District Court for the Northern District of Texas identified a “pernicious” practice of professional bullying, commenting that “[w]ith alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers . . . [and] refereeing abusive litigation tactics that range from benign incivility to outright obstruction.” Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 286 (N.D. Tex. 1988). Despite judicial condemnation, attorneys throughout the country still use sharp practice or aggressive tactics and treat opposing counsel and parties with disrespect. See Castillo v. St. Paul Fire & Marine Ins. Co., 938 F.2d 776, 779 (7th Cir. 1991) (“professional incivility [is] a situation of general concern in this circuit and elsewhere.”). As explained below, the Model Rules and their state counterparts impose ethical obligations on counsel to behave professionally, even while zealously advocating for their clients. Moreover, the Federal Rules of Civil Procedure and 28 U.S.C. § 1927 provide mechanisms with which attorneys may challenge, or, in other words, stand up to, opponents whose litigation style lies outside the bounds of ethical and fair practice. This program will

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cover several ethical issues arising out of aggressive litigation practices and present an array of tools to use when dealing with opposing counsel who engage in those practices.

II. AN OVERVIEW OF ZEALOUS ADVOCACY, PROFESSIONAL MISCONDUCT, AND REPORTING REQUIREMENTS

A. No Express Duty to Zealously Advocate

Many attorneys operate under the misconception that the Model Rules contain an express duty for them to zealously advocate on behalf of their clients. Some compound this misconception with the belief that zealous advocacy authorizes abrasiveness, bullying, hardball lawyering, and a win-at-all-costs attitude. However, over 20 years ago, the ABA’s Model Rules intentionally eliminated an express duty to zealously advocate and replaced it with a duty to represent one’s client with “reasonable diligence.” The current Model Rule provides:

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

The terms “zealously” and “zeal” appear only in the Preamble to the Model Rules and in the Comment to Model Rule 1.3. Even there, the idea of zealous advocacy is tempered; in the Preamble to the Model Rules, the drafters advise: “a lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law” must include “a professional, courteous, and civil attitude toward all persons involved in the legal system.” See Preamble and Scope at ¶ 9. Additionally, in the Comment to Model Rule 1.3, the drafters note that while lawyers must act “with zeal in advocacy upon the client's behalf . . . [they are] not bound, however, to press for every advantage that might be realized for a client.” See Comment to Model Rule 1.3 at ¶ 1. Attorneys who excuse aggressive tactics because they are zealously advocating for their clients stand on shaky ethical ground and flatly ignore requirements for professionalism and civility in their dealings with others.

B. Overly Zealous Advocates Are Rulebreakers

An attorney may practice with zeal and remain squarely within ethical bounds; zeal in advocacy may mean readiness, eagerness, forwardness, or fervor. When attorneys are belligerent, aggressive or offensive, they misunderstand the true meaning of zeal and how to act with it. The Preamble to the Model Rules charges all attorneys with a “special responsibility for

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the quality of justice,” meaning that “a lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” See Preamble and Scope to Model Rules at ¶ 1. Adding to the lofty Preamble statements, and as discussed in the section on discovery below, Model Rule 3.4 generally imposes on an attorney a duty of fairness to an opposing party and counsel. The Model Rules also dictate that attorneys treat third parties well, for:

Rule 4.4 Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

While attorneys may practice with zeal, a practice style that includes actions meant to harass, intimidate, or embarrass opposing counsel, parties to the litigation, and third parties violates the Model Rules and is unethical.

C. Rulebreakers Engage in Professional Misconduct

In a section entitled “Maintaining the Integrity of the Profession,” the Model Rules explicitly state that violations – and even attempted violations – of the rules are actionable as instances of professional misconduct:

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

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

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

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

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(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

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

The Comment to Model Rule 8.4 explains that “[l]awyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct . . . .” See Comment to Model Rule 8.4 at ¶ 1. Discipline may come in an array of penalties, such as a fine, suspension or, in extreme cases, even disbarment. Given a device with which to discipline unethical behavior, what allows lawyers to continually engage in intimidating and overly aggressive litigation tactics is our own failure to call the bullies and rulebreakers to task for their bad behavior.

D. Our Obligation to Report Professional Misconduct

While the idea of reporting your adversary’s ethical infractions may not seem appealing to you and may even invoke opposing counsel’s anger, our own ethical obligations compel such reporting when the misconduct is particularly egregious. The Model Rules provide the following guidance on self-regulation:

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

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The Model Rules require reporting even in isolated incidents because it “may indicate a pattern of misconduct that only a disciplinary investigation can uncover.” See Comment to Model Rule 8.3 at ¶ 1. However, attorneys may use “a measure of judgment” when deciding whether to report unethical conduct, because Model Rule 8.3 “limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent.” See Comment to Model Rule 8.3 at ¶ 3. Several factors weigh in favor of reporting incidents of professional bullying: (1) the elimination of an express duty to zealously advocate in favor of a standard of reasonable diligence; (2) the American Bar Association’s emphasis on advocacy with civility; and (3) a desire to practice in, and have non-lawyers participate in, a respected judicial system.

III. SPECIFIC INSTANCES OF BULLYING & RULEBREAKING

To more specifically explore the ways in which sharp practices violate the Model Rules, the following section reviews ethical violations relating to opposing counsel making material misrepresentations to the court, filing frivolous claims and motions, thwarting the taking of discovery or the advancement of a case, contacting your client without your knowledge and consent or using dishonest tactics during settlement negotiations.

A. Improper Service and Misrepresentations to the Court Regarding Service

An unethical plaintiff’s lawyer may attempt to gain an easy advantage over defendants by intentionally manipulating the service of process requirements or outright lying regarding service. Stories abound of lawyers intentionally using a wrong name or address to delay service. In a more extreme account of dishonesty, a plaintiff’s lawyer hand-served the defendant a copy of a letter plaintiff had sent to the Department of Labor. Counsel proceeded to falsely claim that he had hand-served the defendant a copy of the complaint at the same time as the letter. Under the law, service should have been made by certified mail. When the defendant failed to act, the plaintiff moved for a default judgment. The defendant had no recourse unless he was able to prove he had not been served or that plaintiff intentionally failed to make proper service. Such deceitful behavior clearly violates the Model Rules:

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

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(d) engage in conduct that is prejudicial to the administration of justice.

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

Rule 3.4 Fairness to Opposing Party & Counsel

(a) A lawyer shall not:

a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

B. Filing Frivolous Claims

Not all lawsuits – nor all claims and defenses at issue in a lawsuit – are meritorious. Lawyers may unwisely pursue claims that lack any evidentiary support or which are untimely due to an expired Statute of Limitations. The Model Rules prohibit the filing of a clearly frivolous lawsuit:

Rule 3.1 Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

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Sanctions can often be imposed on attorneys who pursue frivolous claims where there is bad faith, or where the offending attorney knew or should have known that the pursuit of litigation was without any reasonable basis in law or equity. (See, e.g., Denman v. Public Service Electric & Gas Co., No. A-3025-10T4 (N.J. Super. August 24, 2012). (affirming award of attorneys fees for knowingly pursuing a claim in violation of the statute of limitations). In such an instance, however, note that there may first be a duty for the non-offending attorney to provide written notice of any deficiencies in the complaint prior to seeking sanctions relating to such deficiencies.

Depending upon the jurisdiction, Counsel may also be criminally liable if they demand settlement for a clearly frivolous lawsuit. See, e.g., State of New Hampshire v. Hynes, 978 A.2d 264, 268 (N.H. 2009) (affirming conviction of theft by extortion). At the very least, counsel who file frivolous lawsuits or assert frivolous claims or defenses have behaved unethically.

C. Abuse of Motion Practice

Attorneys are officers of the court, and as such, they have a duty to truthfully present the facts of a case, the procedural history, and the governing law. Good advocates creatively spin the facts and law to present the best portrait of their clients. Unethical advocates file multiple motions to cause delay and increase costs, attempt to put off discovery with stay motions, move to extend deadlines, and submit extensive motions for summary judgment before providing discovery when facts are at issue. Unprofessional adversaries who make material misrepresentations are manipulating the facts and the law, which is not in keeping with their ethical duties. The Model Rules impose duties of timeliness and candor:

Rule 3.2 Expediting Litigation

(a) A lawyer shall make reasonable efforts to expedite litigation consistent with the efforts of the client.

Rule 3.3 Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

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(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, which the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

D. Thwarting Discovery or Advancement of the Case

Aggressive tactics may surface during discovery because written discovery is only exchanged by the parties (not filed with the court) and because depositions are taken in law offices outside the presence of a judicial officer. For instance, a recent motion for sanctions revealed vehement emails during the scheduling of a deposition (not even during the deposition itself) in which a partner from a major law firm told his opponent: “F#*% with me and you will have a huge *%^&hole” and “You are such a whiner. I will kick your ass, in court or anywhere else pansy.” Again, this conduct occurred during the scheduling of a deposition, and the aggressive partner was unchecked by a judicial officer.

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Regarding discovery and trial, Model Rule 3.4 dictates fairness to opposing counsel and parties to the litigation, stating, among other requirements, that a lawyer shall not “unlawfully obstruct another party's access to evidence,” “falsify evidence,” or “knowingly disobey an obligation under the rules of a tribunal.” Model Rule 3.2 also discourages obstructionist tactics, for, “A lawyer shall make reasonable efforts to expedite litigation consistent with the efforts of the client.”

Despite these rules, misconduct during discovery and depositions abound:

1. Suggestive or Argumentative Objections and Refusals to Answer Questions

Aggressive lawyers overuse objections, use speaking objections, and harangue the attorneys who are taking depositions in order to fluster the attorney and to intimidate and/or signal to the deponents that the deponent’s counsel has lost control of the proceedings. The Federal Rules of Civil Procedure require civility when objecting to a question, for “[a]ny objection made during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.” F.R.C.P. 30(d)(1). The Federal Rules of Civil Procedure also limit an attorney’s ability to instruct a witness not to answer a question: “A person may instruct a witness not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” Id. Efforts to obstruct the disclosure of relevant information, such as “detailed objections, private consultations with the witness, instructions not to answer, instructions how to answer, colloquies, interruptions, [and] ad hominem attacks,” are violations of F.R.C.P. 30 and may invoke sanctions. Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001) (noting sanctioned counsel appeared on eighty- five percent of deposition transcript with statements other than objections as to form or requests for court reporter to read back question).

Not only are these actions sanctionable under F.R.C.P. 30, but they also constitute ethical violations of the Model Rules. Speaking objections and impermissible directions to a witness not to answer hamper access to evidence and can leave the wrong impression about the answer to a fact question. Such results run contrary to Model Rule 3.4’s censure against obstructing another party’s access to evidence or falsifying evidence. Moreover, attorneys who practice in federal court are charged with knowledge of the Federal Rules of Civil Procedure. If an attorney disregards these rules, by failing to concisely object to a line of questioning at deposition or by

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bickering or interfering with the attorney taking the deposition, then that attorney has knowingly disobeyed an obligation under the rules governing federal practice, which is specifically prohibited by Model Rule 3.4(c).

2. Sexist and Racists Remarks at Deposition

Aggressive deposition tactics have a hurtful effect on groups who are marginalized within the profession, including, but not limited to: new lawyers, women, people of color, people with disabilities, and LGBT lawyers. In the Preamble to the Model Rules, the charge to behave professionally, courteously, and civilly forbids name-calling and insults to opposing counsel. Yet, some lawyers simply cannot help themselves. For instance, the Florida Bar sanctioned an attorney for demeaning a Puerto Rican female opponent by telling her that depositions were not conducted according to “girl’s rules,” by calling her a “stupid idiot” and a “bush leaguer,” and by referring to her client as “crazy” and “nut case.” See Florida Bar v. Martocci, 791 So. 2d 1074, 1074-6 (Fla. 2001) (publicly reprimanding, requiring a two-year probation, and assessing costs against sanctioned attorney). Faced with an attorney who had made similarly disparaging comments, such as “[t]ell that little mouse to pipe down” and “[g]o away, little girl,” the New York Supreme Court stated that “[o]bstructionist tactics may merit sanctions” and “[s]anctions are also appropriate when an attorney egregiously fails to conform to accepted notions of conduct.” Principe v. Assay Partners, 586 N.Y.S.2d 182, 184-86 (N.Y. App. Div. 1992) (sanctioning attorney for misconduct with $1,000 fine). Even in 2012, sexist comments have occurred in writing. Recent news reports leaked a motion for sanctions and its accompanying exhibits (lengthy email chains between counsel attempting to schedule a deposition) in which a partner from a major law firm insults, curses at and threatens his opponent. When his opponent removed a female, first-year associate from the email chain, the partner responded: “I added her back on because she needs to grow up.” Advised to “give it a rest,” the partner added, “Don’t f#*% with me [man]. Big mistake.” Sexist and racist comments from an adversary, particularly when they obstruct the taking of a deposition, are outside the bounds of ethical conduct and are sanctionable.

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E. Contacting Client Without Counsel’s Knowledge or Consent

As client representatives, attorneys expect to handle all communications from their adversaries. Indeed, the Model Rules mandate that attorneys only contact represented persons through their counsel.

Rule 4.2 Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Model Rule 4.2 is meant to prevent “overreaching by other lawyers who are participating in the matter” and “the uncounseled disclosure of information relating to the representation.” See Comment to Model Rule 4.2 at ¶ 1. For instance, an unprofessional adversary may contact an employee of a represented corporation in order to verify facts alleged in a complaint. If the subject matter that the adversary and employee discuss relates to the pending lawsuit, then the adversary has committed an ethical violation. See Comment to Model Rule 4.2 at ¶ (“This Rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation.”). The Model Rules discourage unauthorized contact with clients to the extent that one “must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.” See Comment to Model Rule 4.2 at ¶ 3.

Model Rule 4.2 is not limited to the litigation context. An entire Florida law firm was recently disqualified from a case because the lead counsel made comments to an adverse party in an arbitration matter. Bedoya v. Aventura Limousine & Transp. Service Inc., No. 11-24432, *69 2012 LEXIS 68322 (S.D. Fla. May 16, 2012). The contact took place in a hallway during a break in the arbitration. Id. at 15. Notably, the arbitration at which the communication took place was separate from the matter from which the firm was disqualified, but involved the same lawyers and the same Defendant. Id at 19. Since the communication had the effect of influencing the

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Defendant’s relationship with his counsel, the court stated it had an “effect” on the case at issue, thus the disqualification was warranted. Id at 20.

F. F. Dishonesty Regarding Settlements

It is disappointing how many litigators working on settlements find that opposing counsel do not honor the deal when exchanging draft agreements. Unlike litigation, these situations are less likely to be found in reported decisions unless an action is commenced for bad faith or to enforce a settlement when one side backs out of the deal. However, anecdotal reports reveal that counsel may not include all the agreed terms in a settlement agreement or may fail to show all changes in tracked or red lined documents. Likewise, counsel may attempt to “confirm” terms that were never agreed upon. It is not always clear if this is due to inadvertence or intentional. The rules previously discussed apply here as well.

Rule 4.4 Respect for Rights of Third Persons

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

IV. TOOLS FOR DEALING WITH UNPROFESSIONAL ADVERSARIES

A. Federal Rule of Civil Procedure 11

Attorneys dealing with unprofessional adversaries may use Federal Rule of Civil Procedure 11 to bring to the court’s attention the filing of frivolous pleadings, the continuation of an untenable position, and the inclusion of a material misrepresentation in a court filing. According to F.R.C.P. 11(a), an attorney must sign every pleading or written motion submitted to the court. F.R.C.P. 11(b) provides that, by signing the pleading or written motion, the attorney has verified that the document is not being presented for an improper purpose, is based on existing law or a non-frivolous argument for extending or creating new law, and contains factual assertions or denials of them that have or are likely to have evidentiary support. Thus, filing a

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frivolous pleading, maintaining an untenable position, or making a material misrepresentation to the court are actions upon which an F.R.C.P. 11 sanction may be based.

If attorneys wish to file a motion for sanctions under F.R.C.P. 11, they must serve that motion under F.R.C.P. 5, which gives the attorney who is the subject of the motion 21 days to change the inappropriate conduct, e.g. by withdrawing a frivolous pleading or correcting the material misrepresentation. Once the 21 day waiting period passes, the motion may be presented to the court for consideration. Under F.R.C.P. 11(c)(1), a law firm is held jointly responsible for any sanctionable conduct of its partners, associates, and employees “absent exceptional circumstances.” Moreover, F.R.C.P. 11(c)(2) authorizes the court to award reasonable expenses, including attorney’s fees, incurred by the filing of a motion for sanctions. The goal of F.R.C.P. 11 is to deter unprofessional conduct, so any penalties for actions that violate F.R.C.P. 11 should be made in accordance with that goal.

B. 28 U.S.C. § 1927

When faced with an unprofessional adversary who unreasonably prolongs a matter, an attorney may challenge that behavior under 28 U.S.C. § 1927. Section 1927 provides that a court may require an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously . . . to satisfy personally the excess costs, expenses, and attorney’s fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. Courts have held that an attorney may be sanctioned under Section 1927 “despite the absence of conscious impropriety.” Jones v. Cont’l Corp., 789 F.2d 1225, 1230 (6th Cir. 1986). Thus, the movant need not show that the attorney being challenged under Section 1927 acted with bad faith; rather one only must prove that the attorney “knows or reasonably should know that a claim pursued is frivolous, or that his or her litigation tactics will needlessly obstruct the litigation of non-frivolous claims.” Id.

Unlike Rule 11, Section 1927 does not authorize the imposition of sanctions on a represented party or on the law firm of which the sanctioned attorney is a member. See Claiborne v. Wisdom, 414 F.3d 715, 722-24 (7th Cir. 2005).

C. Federal Rule of Civil Procedure 37

Lawyers can strategically use Rule 37 motions to compel when dealing with a RAMBO litigator’s obstructionist tactics during discovery. Under the rule, “A party seeking discovery

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may move for an order compelling an answer, designation, production or inspection.” Such a motion can be made if “a deponent fails to answer a question asked under Rule 30 or 31,” “a party fails to answer an interrogatory submitted under Rule 33,” “a corporation fails to make a designation under Rule 30(b)(6) or 31(a)(4)” or “a party fails to permit inspection.” A motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” However, no standard has been established for what constitutes a good- faith attempt to meet and confer.

Novice lawyers are especially vulnerable to falling for tactics such as a non-producing party reneging on a promise to produce discovery at the last second or claiming to produce discovery and then producing only a small portion the discovery promised. Where a non- producing party violates its discovery obligations or the obligation to meet and confer, the party requesting discovery should consider filing a motion to compel. The most effective motion to compel is concise and to the point, as judges generally dislike dealing with discovery abuses and have little patience for such issues. Other than in exceptionally complex cases, a motion to compel should be just a few pages long, and should cite appropriate rules without lengthy legal quotations. Used correctly, a motion to compel can put the judge on notice that the opposing party is behaving unethically, and more importantly, can help in obtaining entitled discovery. In cases of particularly egregious disregard for deadlines or failures to disclose, sanctions can be imposed, often in the form of attorney fees and expenses for the time spent drafting and filing the motion to compel.

V. CONCLUSION

Many attorneys practice with the misconception that their ethical duties require overly aggressive advocacy. Attorneys who bully, break ethical rules, and misuse their positions often excuse their bad behavior by referencing a “duty” to zealously advocate on behalf of their clients. These unprofessional adversaries misunderstand the Model Rules and the obligations that they impose on attorneys. Their conduct violates ethical rules and exposes them to sanctions. In order to deter bad behavior and to encourage practice with civility, we must use the tools available to us under the Model Rules, the Federal Rules of Civil Procedure, and 28 U.S.C

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§ 1927 to call unprofessional adversaries to task by reporting unethical acts, and in some cases, asking for sanctions.

VI. PRACTICE POINTERS

In the face of aggressive litigation tactics, here are some practical steps to take:

Recall your duty to report misconduct and decide whether actions at issue rise to the level of an offense that a self-regulating profession must endeavor to prevent or whether the incident may be one of a pattern and practice for the offending attorney. Research any attorney you suspect of being a RAMBO litigator. You may uncover tactics he or she has used against others, leaving you better positioned to deal with them. In some cases, you may be able to use your findings as evidence that the tactic is being used against you or your client. Memorialize opposing counsel’s conduct in a written communication, such as a letter or an email, outlining the rules and statutes that he has violated. File a motion to compel if opposing counsel is engaging in obstructionist behavior during discovery. At a deposition, describe on the record non-verbal conduct that could amount to sanctionable behavior. In addition to “reading” non-verbal conduct into the record, consider obtaining verification from a witness (e.g. the deponent, another lawyer who is present). You may also ask the witness on the record, “Do you feel intimidated or offended?” If opposing counsel is known for engaging in sharp practices or bullying, consider noticing a videotape deposition. Identify personal attacks or factual misrepresentations made in opposing counsel’s briefs or motions. File a motion for sanctions under Fed. R. Civ. P. 11 based on opposing counsel’s objectionable conduct and provide specific, written documentation of that conduct in the motion’s supporting exhibits. File a motion to compel under Fed. R. Civ. P. 37 when dealing with obstructionist tactics that prevent access to rightly discoverable information.

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A MATTER OF INTEGRITY: CIVILITY AND POLITICAL DISCOURSE1 by Yohuru Williams

In the case of Trop v. Dulles (1958), the Supreme Court heard the petition of a soldier stripped of his citi zenship for desertion during World War II. In a 5-4 decision, the Court ruled that it was unconstitutional for the government to revoke the citizenship of a U.S. citizen as punishment. The Court cited the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment. While it might seem odd to open an article on civility in public discourse with an Eighth Amendment case, it is not the amendment itself, but the manner in which the Court interpreted it, that warrants discussion here. Wrestling with its meaning, Chief Justice Earl Warren concluded that its language was neither precise, nor static in scope. The amendment, he explained, draws its meaning from the “evolving standards of decency that mark the progress of a maturing society.” A very interesting concept indeed, when applied to discussions of civility. The context, of course, is important. Chief Justice Warren meant to highlight the notion that as a society matures, less humane aspects of its politics, and culture should evolve as well. We no longer draw and quarter, or sentence lawbreakers to the whipping post. Should we expect any less when it comes to civility and free expression? However, how do we define civility? Especially if we accept the notion that it cannot be static—as technology and innovation are constantly redefining the means and manner in which we communicate. In this sense civility is a lot like obscenity, at least in the way the late Supreme Court Justice Potter Stewart chose to define it in his famous opinion inJacobellis v. Ohio (1964), “I know it when I see it.” The problem lately is that we do not see enough of it. From caustic attack ads to a lack of decorum in the hallowed halls of Congress, we now celebrate as exceptions, what we would hope would be the givens in political discourse in a constitutional democracy. That in “the marketplace of ideas,” to paraphrase Justice Oliver Wendell Holmes, it is the soundness of arguments rather than the race, religion, bombast, or background of the messenger that matters most. The Marketplace of Ideas Interestingly, Holmes first articulated that concept in his famous dissent inUnited States v. Abrams (1919) in defense of a group of anarchists convicted under the Espionage Act. “If you have no doubt of your premises or your power and want a certain result with all your heart,” Holmes explained, “you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths,” he concluded, “they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.” While Holmes wrote eloquently in defense of free expression, even in wartime, he never suggested that such discourse had to be uncivil. In fact, incivility and a lack of reason in political discourse helped to fuel the Civil War, in which Holmes fought on the side of Union. As Civil War historian, C. Vann Woodward conceptualized the decade leading up to the war, “In the course of the crisis each antagonist, according to the immemorial pattern had become convinced of the depravity and evilness of the other. Each believed itself persecuted, menaced . . . paranoia continued to induce counter paranoia, each antagonist infecting the other reciprocally, until the vicious spiral ended in war.” Rather than a deviation, the ugly turn in American political discourse in recent years may be more consistent with our past than we would like to imagine. As historian Geoffrey C. Ward explained, “Our ancestors seem to have liked nothing better than vitriolic, abusive, intensely personal politics. Even

1 Reprinted with permission from the American Bar Association. From Insights on Law & Society, Winter 2013, Vol., 13, No. 2.

Professionalism in Times of Disruption 4–79 Chapter 4—Reflecting on and Responding to the Changing Landscape the greatest statesmen delighted in it.” The spread of new technology from the radio, to television, to the Internet has simply made the rancor more accessible and allowed people to partake singularly in the politics of their choice in essence circumventing the marketplace of ideas. In recent years, the immemorial pattern described by Woodward seems to be augmenting what Richard Hofstadter aptly called the paranoid style of American politics. Political discourse in America has become a one-sided conversation fueled by technology that allows the individual to drown out all other points of view but their own, helping to erode respect for even the highest of elective office, the presidency. This certainly was not the intent of the nation’s founders. Influenced by the heady ideas of the Enlightenment that celebrated reasoned discourse, the Founders envisioned a republic in which there could be impassioned debate on issues free from prior restraint. They also were keenly aware of the rancor of public discourse on matters of politics. They nevertheless insisted on free speech as a safeguard against tyranny. Today, if we are able to show the marks of our progress, then political discourse should be reflective of a society that has proved in blood its respect for the free exchange of ideas without the instruments of violence and the language of hate. Even as it demands greater sacrifice from all of us to think about the ways in which controversial ideas and disagreements might be expressed—in honor of that sacrifice— with truthfulness and respect. “Integrity,” President Harry Truman once commented, paraphrasing C.S. Lewis, “is what happens when nobody is watching.” If that sage wisdom remains true, then civility aptly describes what happens when everyone is watching. In 2009, for instance, in what he later described as an act of spontaneous indiscretion, South Carolina Representative Joe Wilson interrupted President Barack Obama’s delivery of a special health care address to the nation by shouting, “You lie!” While Wilson later apologized, South Carolina Represen tative Jim Clyburn nevertheless hit on the crux of the problem. “I was always taught that the first sign of a good education is good manners,” Clyburn explained shortly after the incident. “I think that what we saw tonight was really bad manners.” For history and social studies educators, Joe Wilson’s outburst, at the very least, warrants an examination of the principles of proper decorum balanced with the right of free speech. While the right of free speech as guaranteed by the First Amendment has become an essential feature of American democra cy, should we concern ourselves solely with its legal limits without taking stock of its moral and ethical considerations, as well? While prohibiting the government from enacting measures to restrain free speech, it is nevertheless clear that the Founders also expected that individuals would not only be responsible, but accountable for their words and actions as caretakers of American democracy. As Benjamin Franklin memorably responded to the inquiry of what form of government the United States was going to have as he exited the Constitutional Convention in Philadelphia in 1787, “A Republic, if you can keep it.” Franklin’s words convey the deep level of personal responsibility Americans share as custodians of American democ racy, of which civility is an important ingredient. It is not a stretch to presume that they also imagined such discourse would be respectful in line with the customs of the day. “Let your Conversation be without Malice or Envy,” rule number 58 of George Washington’s translation of the Rules of Conduct dutifully advised, “for ‘tis a Sign of a Tractable and Commendable Nature: And in all Causes of Passion admit Reason to Govern.” Accountability Is Critical Representative Wilson violated the rules of etiquette established by his own party when he heckled the President. House Republican procedures identify seven categories of unparliamentary speech, which all members should avoid. All in some meaningful way touch on common courtesy, one of the

Professionalism in Times of Disruption 4–80 Chapter 4—Reflecting on and Responding to the Changing Landscape cornerstones of civility. What the rules demonstrate collectively is the expectation of respect by each member not only for the body, but also for one another. It is an investment that is not possible without respect for some basic rules and decorum. F Defaming or degrading the House F Criticism of the Speaker’s personal conduct F Impugning the motives of another member F Charging falsehood or deception F Claiming lack of intelligence or knowledge F References to race, creed, or prejudice F Charges related to loyalty or patriotism The House rules betray the keys to civility in political discourse. First, civility begins with courtesy tempered by personal integrity that allows one to disagree without being disagreeable, even when faced with hostile or abusive language. Calls for personal integrity and accountability, for instance, often follow major breakdowns in political civility. After a heated exchange between two Alabama state senators, Charles Bishop and Lowell Barron, ended in a punch thrown in the state senate chamber in 2007, their colleague Senator Hank Erwin appealed to that body to use the incident as an opportunity for each member to examine their own sense of integrity. Acknowledging, what he described as “back stabbing, [and] abusive language on both sides,” he refused to endorse a resolution to remove Bishop. “I think if we are going to use Senator Bishop as an example,” he lectured his colleagues, “we need to say what changes we are each going to make in our personal behavior.” Erwin’s comments succinctly capture the importance of personal integrity in all types of communication, especially in the field of politics. They also indirectly underscore the importance of veracity (truthfulness) and investment, the sense of responsibility each individual should feel to the whole body politic. All of these factors ultimately should influence the use of language. In defense of his actions Alabama senator Bishop, for instance, blamed the hostile language invoked by his colleague. “I was raised in the woods of Arkansas,” he clarified, “and people don’t say that about your mom.” No one would deny that language is important and while the First Amendment protects speech, it does not remove the individuals’ responsibility to be respectful in their use of language. With a far greater means of amplifying their message, elected officials have an even greater responsibility to be judicious in their communication respecting the rules of debate and civil discourse for the benefit of the entire body politic and ensuring truthfulness. A powerful recent example best illustrates this point. At a political rally in Ohio in October of 2008, Arizona Senator John McCain responded to an attendee’s reference to then-candidate Barack Obama as a disloyal Muslim Arab with, “No, no ma’am he’s a decent, family man, citizen that I just happen to have disagreements with on fundamental issues, and that’s what this campaign is about.” The televised exchange won praise for McCain, whose forthright decision to tackle the false allegations transcended his own political aspirations, a show of integrity that remains uncommon. In 2012, for instance, former Pennsylvania Senator Rick Santorum drew criticism for his failure to correct a woman at a campaign event in Florida who called the president an “avowed Muslim.” In response to reporters’ queries surrounding the incident, Santorum articulated what we might term the cornerstone of the mantra of incivility, a denial of responsibility. “I don’t think it’s my responsibility,” he explained. “Why don’t you go out and correct her? It’s not my responsibility as a candidate to correct everybody who makes a statement that I disagree with.” Santorum’s comments suggest what some might term a lack of investment. Legal scholar Christopher Eisgruber has observed that “American government aspires to be both democratic and just. . . . To insist that justice and democracy coincide,” he continues “makes heavy, but we may hope, not impossible

Professionalism in Times of Disruption 4–81 Chapter 4—Reflecting on and Responding to the Changing Landscape demands upon the American people.” Those heavy demands call upon us individually and collectively to reflect on our own behavior and its impact on our life and government. If we collectively do not accept responsibility for the manner in which we care for our democracy, we will share the blame when it no longer functions as the Founders intended. Civility is not always about what is lawful, but what is respectful. It is how the personal influences the political. The lesson to take away from public officials in their best moments from George Washington to John McCain is never to lose sight of the humanity of those with whom we disagree. To be honest and respectful in our discourse is as much a means of ensuring the golden rule as preserving our democracy, frail and imperfect, but far more desirable than the alternative. Yohuru Williams is Chair of the History Department and Director of Black Studies at Fairfield University in Fairfield, Connecticut. He is the author ofBlack Politics/White Power: Civil Rights, Black Power, and the Black Panthers in New Haven and Teaching U.S. History Beyond the Textbook.

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