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Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer who is a public employee take part in a lawful labor strike against the government agency that employs them?

Short answer: Yes, qualified. The opinion concludes nothing in the rules bars a public-employee lawyer from a lawful strike, but the lawyer must avoid neglecting client matters (by giving adequate advance notice so work can be reassigned) and must keep the employer-client reasonably informed during the strike.

Apply this to your situation

This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer is a public employee who provides legal services to a public entity. The employees, including the lawyer, have not succeeded in negotiating over salary and other employment terms and are considering a strike, which they have the legal right to undertake under applicable law. The opinion asks whether the lawyer may ethically engage in an otherwise lawful strike, and answers yes, qualified.

The opinion explains that the Public Employee Collective Bargaining Act (ORS 243.650 to 243.782) grants public employees who are not confidential, supervisory, or managerial the right to form, join, and participate in labor organizations, and that nothing in the rules prohibits the lawyer from union membership or from participating in a lawful strike. (It limits itself to public-employee strikes under that statutory authority and offers no view on privately employed lawyers.)

The opinion then identifies how the rules affect the manner of striking. Under Oregon RPC 1.3, a lawyer must not neglect a legal matter entrusted to the lawyer; participation in a strike will not amount to neglect if the lawyer gives adequate advance notice of the intent to strike and the public employer can assign the work to others or hire temporary replacement lawyers, which the statutory pre-strike procedures generally make feasible. Under Oregon RPC 1.4, the lawyer must keep the employer-client reasonably informed and promptly comply with reasonable requests for information; this duty is not suspended during a strike, and a situation may require the striking lawyer to communicate promptly about a specific matter. The opinion analogizes the strike to an associate taking Family and Medical Leave Act leave: a legal right to be absent, but one whose exercise is shaped by the rules. It concludes the lawyer may ethically strike but remains subject to the rules of professional conduct throughout.

In practice

This opinion was issued in 2005, after Oregon's adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, but readers should treat its specifics with care given its age. The opinion holds that the strike right is not itself an ethics problem; the duties of diligence and communication are. Per the opinion, the analysis turns on whether advance notice lets the employer cover the work (avoiding neglect under Oregon RPC 1.3) and whether the lawyer continues to keep the employer-client informed (Oregon RPC 1.4) during the strike. Verify the current text of Oregon RPC 1.3 and 1.4 before relying on any specific point.

Common questions

Q: Can a government-employed lawyer go on strike?

A: Yes, qualified. The opinion concludes that nothing in the rules prohibits a public-employee lawyer from participating in an otherwise lawful strike under the Public Employee Collective Bargaining Act.

Q: How does the lawyer avoid neglecting client matters during a strike?

A: By advance notice. The opinion concludes that a strike will not be neglect under Oregon RPC 1.3 if the lawyer gives adequate advance notice so the employer can reassign the work or hire temporary replacement lawyers.

Q: Does the duty to communicate with the client stop during the strike?

A: No. The opinion concludes the Oregon RPC 1.4 duty to keep the employer-client reasonably informed is not suspended during a strike, and the lawyer may have to communicate promptly about a specific matter.

Background and rules framework

The opinion interprets Oregon RPC 1.3 (diligence; not neglecting a matter) and Oregon RPC 1.4 (communication with the client), corresponding to Model Rules 1.3 and 1.4, against the Public Employee Collective Bargaining Act (ORS 243.650 to 243.782), which supplies the right to strike.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.3 / Model Rule 1.3 (diligence; not neglecting a legal matter)
  • Oregon RPC 1.4 / Model Rule 1.4 (keeping the client reasonably informed)

Statutes:

  • ORS 243.650 to 243.782 (Public Employee Collective Bargaining Act)

See also

Source

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