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Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer help a client deliberately breach a contract or minimize the damages that will flow from the breach?

Short answer: Qualified yes: a lawyer may assist a client in breaching a contract and in minimizing the resulting liability, so long as the lawyer does not help the client defraud anyone (RPC 8.4) and does not use means whose only substantial purpose is to harass or burden a third person (RPC 4.4).

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 Not binding precedent.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 client asks a lawyer to help the client breach a contract with another party, or to minimize the damages likely to flow from that breach. The opinion asks whether the lawyer may do so and answers yes, qualified.

The opinion grounds the answer in Oregon RPC 1.2: a lawyer abides by the client's decisions on the objectives of the representation and may take impliedly authorized action to carry it out, but under RPC 1.2(c) a lawyer may not counsel or assist a client in conduct the lawyer knows is illegal or fraudulent. Breaching a contract, and paying or minimizing the resulting damages, is not itself illegal or fraudulent, so it falls within what the lawyer may help the client pursue.

The opinion then marks the two limits. Under Oregon RPC 8.4(a)(3) a lawyer cannot help a client defraud others, and under Oregon RPC 4.4(a) a lawyer cannot use means that have no substantial purpose other than to embarrass, delay, harass, or burden a third person. As long as the lawyer refrains from that wrongful conduct and does not assist the client in it, the lawyer may assist the client to breach the contract and to minimize the liability flowing from the breach. A footnote adds that Oregon RPC 1.16(a) requires withdrawal if the representation would violate the rules and Oregon RPC 1.16(b)(3) permits withdrawal if the client has used the lawyer's services to perpetrate a crime or fraud.

In practice

The opinion holds that, under the Oregon rules as they stood at the time of the opinion, assisting a deliberate (efficient) breach of contract is permitted, while assisting fraud or conduct aimed only at harassing a third person is not. The analysis turns on whether the conduct the lawyer is helping with is itself illegal or fraudulent under RPC 1.2(c) and 8.4, and on whether the means chosen serve any substantial purpose beyond harassing a third person under RPC 4.4. Verify the current text of Oregon RPC 1.2, 4.4, 8.4, and 1.16 before relying on any specific point.

Common questions

Q: Is it ethical for me to help a client walk away from a contract?

A: Qualified yes. The opinion concludes a lawyer may assist a client to breach a contract and minimize the resulting liability, because breach is not itself illegal or fraudulent under RPC 1.2(c).

Q: Where is the line?

A: Fraud and pure harassment. The opinion concludes the lawyer may not help the client defraud others (RPC 8.4) or use means whose only substantial purpose is to harass or burden a third person (RPC 4.4).

Q: What if the client tries to use my work to commit fraud?

A: The opinion notes RPC 1.16(a) requires withdrawal if continuing would violate the rules, and RPC 1.16(b)(3) permits withdrawal where the client has used the lawyer's services to perpetrate a crime or fraud.

Background and rules framework

The opinion interprets Oregon RPC 1.2(a) and (c) (scope of representation; not assisting illegal or fraudulent conduct), corresponding to Model Rule 1.2; Oregon RPC 4.4(a) (respect for the rights of third persons), corresponding to Model Rule 4.4; Oregon RPC 8.4(a)(3) (dishonesty, fraud, deceit, or misrepresentation), corresponding to Model Rule 8.4; and Oregon RPC 1.16 (withdrawal), corresponding to Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.2(a), 1.2(c) / Model Rule 1.2 (scope; not assisting illegal or fraudulent conduct)
  • Oregon RPC 4.4(a) / Model Rule 4.4 (respect for rights of third persons)
  • Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)
  • Oregon RPC 1.16(a), 1.16(b)(3) / Model Rule 1.16 (mandatory and permissive withdrawal)

Cases:

  • In re Hawkins, 305 Or 319, 751 P2d 780 (1988)
  • In re Hockett, 303 Or 150, 734 P2d 877 (1987)
  • In re Brown, 255 Or 628, 469 P2d 763 (1970)
  • In re White, 311 Or 573, 815 P2d 1257 (1991)
  • In re Gooding, 254 Or 38, 456 P2d 998 (1969)

See also

Source

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