concurring in part and dissenting in part.
The majority holds that plaintiff failed to state any cognizable claim against defendant attorneys. Because plaintiff did allege facts that state claims against defendants under theories of civil conspiracy and aiding-and-abetting, I respectfully dissent.
According to plaintiff’s complaint, plaintiff, Harding and Alexander-Hergert were the officers, directors and shareholders of Founders Funding Group, Inc. (FFG). Plaintiff owned one-third of the outstanding shares of FFG and Harding and Alexander-Hergert owned the remaining two-thirds. Because Harding and Alexander-Hergert were majority shareholders and directors of FFG, they owed a fiduciary duty to plaintiff as an FFG shareholder. Plaintiff alleges that Harding and Alexander-Hergert entered into an agreement to “squeeze” him out of the company and, in order to achieve that goal, took actions that breached their fiduciary duties to him. After plaintiff objected to their first attempt to exclude him from the company, Harding and Alexander-Hergert turned to defendants for assistance. Defendants knew that Harding and Alexander-Hergert were breaching their fiduciary duties to plaintiff, but, despite that knowledge, they “entered into an agreement” with Harding and AlexanderHergert “to take such further action or actions as [might] be *50necessary” to exclude plaintiff from FFG. First, defendants attempted to enforce Harding and Alexander-Hergert’s earlier tortious action. Once they realized that that action was “invalid and ineffective,” they provided Harding and Alexander-Hergert with the legal advice necessary to remove plaintiff as a director and corporate secretary and wrongfully to dilute his interest in the company from 33 percent to 9.09 percent of the outstanding shares.
Plaintiff’s complaint alleged claims against Harding and Alexander-Hergert for breach of their fiduciary duties as majority shareholders and directors. It also alleged that defendants joined Harding and Alexander-Hergert’s conspiracy to exclude plaintiff from FFG, even though they knew that Harding and Alexander-Hergert would have to breach their fiduciary duties to achieve that goal. It alleged that defendants “provided substantial assistance” to Harding and Alexander-Hergert in that effort. Finally, it alleged that plaintiff suffered damages as a result of Harding’s, Alexander-Hergert’s and defendants’ actions.
Under Oregon law, the elements of a civil conspiracy are:
“(1) Two or more persons * * * ; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.”
Bonds v. Landers, 279 Or 169, 174, 566 P2d 513 (1977) (citations omitted). Plaintiff alleges facts that satisfy each of those elements: He alleges that defendants agreed with Harding and Alexander-Hergert to work together to “squeeze” plaintiff out of the corporation through breach by Harding and Alexander-Hergert of their fiduciary duties to plaintiff He alleges that he was damaged as a result of that breach. Therefore, he states a claim for civil conspiracy.
Despite all that, the majority concludes that defendants cannot be liable to plaintiff for civil conspiracy because civil conspiracy is not an independent tort but, rather, a theory of mutual agency. According to the majority, that means that, under a civil conspiracy theory, “the acts of each of the conspirators are imputed to the other members” of the *51conspiracy. 150 Or App at 39. As a result, because defendants did not have a fiduciary relationship with plaintiff, even if the actions of Harding and Alexander-Hergert were imputed to them, they still would not have committed any tort, because they would not have violated any duty that they owed to plaintiff. 150 Or App at 41.
The majority’s understanding of civil conspiracy improperly limits the liability of conspirators to those who are legally able to commit the tortious acts that cause injury. When Oregon courts have stated or implied that civil conspiracy is not an “independent tort,” they have been making one of two related points: (1) for a civil conspiracy claim to be actionable, there must be an underlying unlawful or tortious act that is either the purpose of the conspiracy or a means to achieve that purpose;1 (2) even if a plaintiff cannot prove a conspiracy, the plaintiff still may recover against each defendant who independently committed a tort against the plaintiff.2 They were not holding, as the majority does, that only those who were legally able to commit the underlying tortious acts could be held liable for those acts under a civil conspiracy theory.
Under Oregon law, civil conspiracy is a theory of mutual agency, under which each conspirator is liable for tortious acts committed by co-conspirators acting to further the conspiracy. Thus, while “[t]he damage in a civil conspiracy flows from the overt acts and not from the conspiracy,” Bonds, 279 Or at 175, the liability for that damage extends to all who join the conspiracy. Civil conspiracy does not merely allow possible tortfeasors to be held liable for a co-conspirator’s tort; it makes joint tortfeasors of those who conspire to commit the tort. That is the purpose of the action:
“When a plaintiff alleges and proves that several defendants conspired to commit a tort upon him, all the defendants involved in the conspiracy can be held liable for the *52overt act which is committed by one of the defendants pursuant to the conspiracy.”
Still v. Benton, 251 Or 463, 466, 445 P2d 492 (1968) (emphasis supplied). The conspirators can be held liable whether or not they were legally able to commit the underlying tortious act.
There simply is no support in Oregon law for the majority’s contrary position that the defendant must be legally capable of committing the underlying tort to be liable for civil conspiracy. An example illustrates how the majority’s distinction can lead to untenable results. A, B, C and D are the shareholders and directors of ABCD, Inc., and A, B and C each have a fiduciary duty to D. E, D’s neighbor, dislikes D intensely, so she approaches A and B to see if she can convince them to join her in a plot to make D’s life miserable. They enter an agreement to achieve that goal. They decide to “squeeze” D out of the corporation. The best way to do that is for A and B to breach their fiduciary duties to D. A, B and E approach C about the project. She joins the conspiracy but refuses to take any overt action or breach her fiduciary duty to D. A and B subsequently breach their respective duties, but D claims that their efforts are ineffective and continues to involve herself in the company. A and B then turn to F, a computer-programming consultant to ABCD, Inc. They tell him what they have been trying to accomplish, that they know that they are breaching their respective fiduciary duties to D to achieve it, but state that they do not care. F agrees to join the conspiracy. Knowing that it will help A and B breach their duties, F toils for days to create a computer program to be used in that effort, which coincidently will also help ABCD, Inc., act more efficiently. A and B use the program, further breaching their duties, and finally are able to exclude D from the corporation. D suffers damages.
D then files a complaint against A and B for breach of fiduciary duty and against A, B, C, E and F under a civil conspiracy theory. According to the majority, despite the fact that A, B, C, E and F were all involved in the conspiracy to “squeeze” D out of the corporation, and despite the fact that tortious actions were taken to further the conspiracy, only A, *53B and C can be held liable for the conspiracy. Although E conceived of the entire plot and F made its effective execution possible, they both are free from liability. That outcome is illogical and unjust and has no basis in Oregon law.
The majority supports its decision by mischaracterizing our reasoning in Bergman v. Holden, 122 Or App 257, 857 P2d 217, rev den 318 Or 170 (1993). In that opinion we reconsidered our earlier decision in Bergman v. Holden, 118 Or App 530, 848 P2d 141 (1993), and adhered to it as modified. In Bergman, the defendant appealed a judgment for timber trespass. He had been hired to haul timber from a location adjacent to the plaintiffs property. Other people had trespassed on plaintiffs property, severed the timber and moved it to the location from which the defendant picked it up. The plaintiff brought an action against the defendant under ORS 105.810 and ORS 105.815, the timber trespass statutes. She argued that even if the defendant had not entered her property, he could be liable for the trespass under Restatement (Second) of Torts § 876. We rejected plaintiffs argument:
“Assuming, but not deciding, that the Restatement tests apply in Oregon, there is no evidence to support liability.
“Liability under section 876(a) requires evidence that defendant acted in concert or pursuant to a common design with the other defendants. Plaintiff points to no evidence of any conduct in concert with the other defendants or of any common design, and we find none.”
Bergman, 118 Or App at 534.
The plaintiff filed a reconsideration motion that we allowed. In that motion, she argued that there was evidence that the defendant knew that at least some of the timber that he transported had come from the plaintiffs land. Bergman, 122 Or App at 259. On reconsideration, we noted that there still was no evidence that the defendant was aware that the timber had been removed illegally and no evidence that he had acted in concert with the others to commit a trespass. We then stated that, under Restatement section 876(a), a conspirator had to commit an act “independently tortious in character” in order for that conspirator to be liable for damages *54caused by the acts of co-conspirators. Id. at 260. We adhered to our decision as modified.
Bergman can be interpreted in only two possible ways, neither of which is relevant to this case. First, it can be read to hold that there was no liability under section 876(a) because there was no evidence that the defendant had acted in concert with the people who had committed the trespass. That conclusion is irrelevant to our case because plaintiff here has alleged that defendants did act in concert with Harding and Alexander-Hergert.
Second, Bergman can be read to hold that there was no liability under section 876(a) because there was no evidence that the defendant had engaged in any independently tortious acts against the plaintiff. Even if that is a proper interpretation of section 876(a), a proposition that I question, we have never determined that that section correctly states Oregon law. Except as specifically adopted, the Restatement (Second) of Torts is not law in Oregon.3 It is useful only to the extent that it accurately restates Oregon law. Occasionally, when that occurs, Oregon courts have spoken of “adopting” a Restatement provision. In Bergman, plaintiffs entire argument was premised on section 876. We assumed for the sake of considering her argument that section 876 correctly stated Oregon law on the subject, but we expressly did not decide that issue. Because the interpretation of that provision in Bergman does not accurately state Oregon law on civil conspiracy, it would not be appropriate to “adopt” that provision to dispose of plaintiffs claims today.
In fact, as noted earlier, the proposition that a person can be held liable for civil conspiracy only if he or she independently commits a tortious act has been squarely rejected in Oregon. See Still, 251 Or at 466 (mayor and councilman allegedly conspired to coerce city manager into discharging sheriff; only mayor acted to secure the discharge; held that, if conspiracy proven, both conspirators could be held liable for damages resulting from the underlying acts by *55mayor); Crosby v. SAIF, 73 Or App 372, 376-77, 699 P2d 198 (1985).
In Crosby, the plaintiff was injured on the job and, as a result, was entitled to workers’ compensation benefits from SAIF. The plaintiff alleged that SAIF and plaintiffs employer had “conspired to divest him unlawfully of his right to workers’ compensation benefits and to terminate him.” Id. at 375. SAIF argued that it could not be held liable under a civil conspiracy theory because, other than the allegation that it had joined the conspiracy, it had not committed any tortious acts. It noted that it was the plaintiffs employer that made “hiring and firing decisions” and that the plaintiff had not alleged any facts that indicated that SAIF “did have or even could have affectuated plaintiffs termination.” Id. at 376. SAIF stated that
“‘civil conspiracy is not itself an independent tort, and plaintiff has not pled the violation of any statute by SAIF Corporation or the violation by SAIF Corporation of any common-law duty owed to plaintiff. Plaintiffs complaint * * * does not state how plaintiffs discharge was in any way unlawful. Moreover, any alleged agreement between SAIF Corporation and plaintiffs employer to create a “light duty” position for plaintiff is completely authorized by statute and regulation and is eminently proper.’ ”
Id. In essence, SAIF’s argument was that it could not be held liable under a civil conspiracy theory because it took no tortious action itself and it was incapable of committing the alleged acts that had led to plaintiffs injury.
We rejected SAIF’s argument. We concluded that “[t]he fact that [the employer] had the hiring and firing authority is irrelevant to whether SAIF conspired with [the employer] to exercise that power for an unlawful purpose.” Id. The plaintiff had alleged that SAIF and the employer had joined together for an unlawful purpose, that one of the conspirators had engaged in tortious conduct to further that purpose, and that the plaintiff had suffered damages as a result. We concluded that the alleged conspiracy, “the overt acts of which have produced damage,” was actionable. Id. at 377 *56(emphasis in original). Thus, it is clear that, in Oregon, a person can be held liable for civil conspiracy even if the person does not commit an independently tortious act.4
In conclusion, applying the proper standard, plaintiff alleged facts sufficient to state a claim for civil conspiracy. There is no requirement in Oregon law that defendants must be legally capable of committing the underlying tortious acts or that they must do anything other than join the conspiracy. Therefore, if plaintiff alleges and proves that defendants joined a conspiracy to “squeeze” him out of the corporation improperly, defendants can be held liable for that tort, even though Harding and Alexander-Hergert are the ones who committed the relevant tortious acts by breaching their fiduciary duties to plaintiff. The majority errs in concluding otherwise.
The majority also errs in concluding that plaintiff failed to state a claim against defendants for aiding and abetting Harding and Alexander-Hergert’s breach of their fiduciary duties. Under Oregon law,
“ ‘all who aid, command, advise, or countenance the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are liable in the same manner as they would he if they had done the same tort with their own hands’ ”
Perkins v. McCullough, 36 Or 146, 149, 59 P 182 (1899) (emphasis supplied; citation omitted). If a person aids and abets the commission of a tort, it is as if the person committed the tort. There is no requirement that the defendant be legally capable of committing the tort.
*57The majority correctly notes that Oregon courts have held that Restatement (Second) of Torts § 876(b) accurately states Oregon law. 150 Or App at 44. That section provides that,
“ [¶] or harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
" ** * * *
“(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”
Restatement (Second) of Torts § 876(b). While the proper analysis no longer depends on the existence of a specific duty toward the injured party, Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987), the principle articulated in Perkins and restated by section 876(b) remains: A person is subject to liability for harm caused by the tortious conduct of another if he or she knows that the other’s conduct is tortious and provides “substantial assistance or encouragement to the other.” Thus, there are three elements that have to be pled under that standard: (1) that the defendant knew that the other’s conduct was tortious; (2) that the defendant gave the other person substantial assistance or encouragement; and (3) that the plaintiff suffered damages from the other’s tortious conduct.
Plaintiff has pled facts sufficient to state a claim under such an aiding-and-abetting theory. He alleged facts that, if proven, constitute a breach by Harding and Alexander-Hergert of their fiduciary duties to him as a minority shareholder. He alleges that defendants knew that Harding and Alexander-Hergert’s conduct constituted such a breach and, notwithstanding that knowledge, provided them with assistance in successfully achieving the purpose of that breach, which was to “squeeze” plaintiff out of the corporation. A jury could conclude that that assistance was substantial. Finally, plaintiff alleges that he was damaged by the breach.
We have never applied the Restatement standard to hold someone liable for another’s breach of fiduciary duty. However, nothing in the language of the cases in which we *58have applied the standard raises any question about whether a claim can proceed under that circumstance. Moreover, despite what the majority says, there is no jurisdictional split as to whether to recognize such a claim. The majority concedes that “[t]hose courts that have considered the precise question have permitted a cause of action.” 150 Or App at 44-45. It contrasts those courts with courts that “do not recognize tort liability for aiding and assisting.” Id. at 45. That some courts do not recognize aiding-and-abetting liability is irrelevant to our inquiry, because Oregon does. Thus, there is no reason to conclude that plaintiff could not state a claim under an aiding-and-abetting theory for a breach of fiduciary duty.
Despite its exhaustive analysis, which suggests that a plaintiff could never state such a claim because the defendant will not have violated a personal duty, the majority, nevertheless, concludes that such a claim can in theory be made. It states:
“The holding in this case will have implications for anyone who assists in conduct that breaches a fiduciary duty owed by another. Because of the competing interests involved and the importance of this issue to all individuals who may be involved with fiduciaries, we believe that whether liability for aiding and assisting a fiduciary in the breach of a fiduciary relationship in the absence of a personal duty must necessarily be decided on a case-by-case basis. We therefore reject the dissent’s proposition that Oregon law imposes a generic duty in this context. Rather, we will look to the particular facts alleged to determine if such a duty exists.”
150 Or App at 47.
The majority characterizes the complaint as alleging that defendants offered legal advice to the corporation that indirectly led to a “further breach of the fiduciary duty owed to plaintiff by Harding and Alexander-Hergert.”5 Id. at 47-48. It then concludes that
*59“[t]he tort [of breach of fiduciary duty] seeks to protect fiduciary relationships and to promote the worthy goal that fiduciary duties be kept and performed. That policy is not furthered by extending it to those who do not owe such a duty in the context of what is alleged here.”
Id.
I disagree with the majority that the protection of fiduciary relationships would not be furthered by extending liability for breach of fiduciary duty to those who knowingly assist or encourage such a breach, particularly where, as alleged here, the assistance is essential to the successful breach of the duty. To impose liability on those who assist in the breach would serve to deter those whose assistance makes the breach possible, thereby protecting the affected fiduciary relationships.
The standard announced by the majority also misses the point of the aiding-and-abetting theory. Applying an aiding-and-abetting theory in the context of a breach of a fiduciary duty does not result in imposition of a fiduciary duty on a defendant who has no such duty. Instead, the defendant is held vicariously liable for the damages flowing from another’s breach of his or her fiduciary duty because, once the plaintiff proves that the defendant aided and abetted the commission of that tort, the law holds the defendant liable as if he or she had actually committed the tort. Therefore, it makes no sense to determine, on a case-by-case basis, whether it would be appropriate to create a fiduciary relationship between a plaintiff and a particular defendant, because that conclusion is irrelevant to the disposition of the plaintiffs claim.
Moreover, even if the majority’s theory were correct, making such a determination on a case-by-case basis would be untenable. The majority would require a trial court to determine, “by reference to the intrinsic nature of the tort of breach of fiduciary relationship and its purpose,” whether the defendant had a duty not to aid or abet another in breaching the other persons’s fiduciary duty. Id. at 47-48. The majority offers no guidance, however, on how a trial court should do that. It cites a number of factors it “considers,” but it is unclear what bearing those factors have on its decision.
*60My example involving ABCD, Inc., can again be used to illustrate the flaw in the majority’s approach. Based on the facts cited above, D files an action against A and B for breach of fiduciary duty and against F under an aiding-and-abetting theory. According to the majority, the trial court would have to determine whether, as a matter of law, D could state a claim against F “by reference to the intrinsic nature of the tort of breach of fiduciary relationship and its purpose.” Id. at 47-48. As with the defendants in the case before us, F had no duty to the plaintiff. He took no independently tortious action against her. Further, he assisted A and B by doing what he was employed to do for the corporation. Finally, all of his actions took place after A and B had already breached their duty. Still, A and B were able to achieve their goal only with the knowing assistance of F, and D suffered damages as a result.
Applying the majority opinion, how would the trial court resolve whether D could state a claim against F for aiding-and-abetting liability? Certainly, allowing the claim to proceed promotes the goal of the tort of breach of fiduciary duty, which is to protect fiduciary relationships, but what role do all of the factors cited by the majority play? Why does the majority refuse to extend a “duty” to the attorney defendants in our case? Does the majority hold that plaintiffs claim fails because he, as a matter of law, failed to allege facts that constitute substantial assistance? Or, does it hold that plaintiffs claim fails because, as a matter of policy, a claim of that kind cannot be made against an attorney? Given the tenor of the majority’s opinion, it seems likely that the trial court would conclude that the decision is based on the latter principle. Thus, because F did not have an attorney-client relationship with the corporation, the court would allow D’s claim to proceed.
The practical result of the majority’s position is that people will not be able to bring claims against attorneys who aid and abet others in breaching their fiduciary duties. However, the majority does not acknowledge that that is the purpose of the decision. Whether a person should be able to hold an attorney liable for another’s breach of fiduciary duty is an intriguing issue, and the majority identifies some of the reasons for and against allowing such a claim. 150 Or App at 46-47. However, it does not adequately explain why it resolves *61the debate in favor of excluding attorneys from liability. The majority’s concerns against holding an attorney liable for another’s breach of fiduciary duty are not unique. They exist in every instance involving an attorney-client relationship and an attempt to hold the attorney liable for another’s tortious acts.
For example, in Clausen v. Carstens, 83 Or App 112, 730 P2d 604 (1986), the case cited by the majority for the proposition that an attorney “can be held liable for acting in concert with a client to commit a tort, even though the lawyer does not commit the tort personally,” 150 Or App at 38, the plaintiff alleged a claim against the attorneys for trespass. The plaintiffs alleged that the attorneys and their client, “acting together, obtained an order appointing a receiver and caused the receiver to take legal custody of the [plaintiff’s] businesses.” Clausen, 83 Or App at 115. We held that, if the order appointing the receiver was void, then the quoted allegation was sufficient to state a claim against the attorneys for trespass. In litigating whether the attorneys and their client were working together to cause the trespass, there was a risk that the attorneys and their clients would have to disclose confidential communications to defend themselves. We concluded, however, that the fact that the defendants were attorneys did not affect their liability. Id. at 115 n 6.
The concerns expressed by the majority are even more pressing in the context of the illegal sale of securities. Under ORS 59.115(3), a person can be held liable for another’s illegal sale of securities if he or she “participates or materially aids in the sale.” Attorneys are often sued under that statute. In defending themselves against such claims, attorneys face the same dilemma that the majority argues defendants would face here if we allow plaintiff to maintain a claim against them. The only difference between the two claims is that, in the securities context, the burden of proving that a defendant knew that the sale of securities in which she assisted was unlawful is shifted from the plaintiff to the defendant. ORS 59.115(3).6 Thus, defending against liability *62is even more difficult for an attorney under ORS 59.115(3) than it is in a case such as this one, yet the legislature has not carved out an exception for attorneys.
In conclusion, if the majority is going to limit the aiding-and-abetting liability of attorneys, the court needs to justify carving out an exception for them in this context. If it undertook that task, it is likely that it would not be able to justify its position, because many of its concerns have been rejected or accommodated in other contexts.7 It should not, however, haphazardly invoke a case-by-case standard when there is no principled reason in Oregon law to create one and no guidance offered on how to apply it. Until it undertakes the appropriate analysis, I am unwilling to join the majority’s conclusion that plaintiff cannot state a claim against defendants under an aiding-and-abetting theory.
I concur with the majoritys conclusion that plaintiff failed to state a claim against defendants for breach of fiduciary duty. However, because plaintiff stated a claim under both a civil conspiracy and an aiding-and-abetting theory under Oregon law, I respectfully dissent.
Leeson and Haselton, JJ., join in this concurrence and dissent.See, e.g., Bonds, 279 Or at 175; Bliss v. Southern Pacific Co. et al, 212 Or 634, 642, 321 P2d 324 (1958).
See, e.g., Still v. Benton, 251 Or 463, 466, 445 P2d 492 (1968); Security & Inv. Co. v. Locks Towing Co., 213 Or 503, 512, 326 P2d 439 (1958); Keller v. Commercial Credit Co., 149 Or 372, 375-76, 40 P2d 1018 (1935); Gabriel v. Collier, 146 Or 247, 255, 29 P2d 1025 (1934).
See, e.g., ORS 30.920 (essentially adopts Restatement (Second) of Torts § 402A and specified comments as Oregon law).
The majority disputes that Crosby has any bearing on this case. The majority is mistaken. Only the employer could act to harm the plaintiff in Crosby, because only the employer had the ability to create a light-duty position for the plaintiff and to fire him, which were the acts that had caused the plaintiffs harm. Nevertheless, we held that SAIF could be liable as a co-conspirator for the employer’s acts. Here, only Harding and Alexander-Hegert could cause plaintiffs harm, because only they could breach their fiduciary duty to him. Crosby establishes that that fact does not insulate defendants from conspiracy liability to plaintiff. Hence, Crosby directly refutes the majority’s position that a co-conspirator must be able to commit the underlying tortious acts in order to be liable as a co-conspirator for the harm caused by those acts.
It is difficult to conceive how the majority could “accept all well-pleaded allegations of the complaint as true and give plaintiff the benefit of all favorable inferences that could be drawn from the facts alleged,” 150 Or App at 36, and still characterize plaintiffs complaint as alleging that defendants were giving legal advice to the corporation for the benefit of the corporation.
Under ORS 59.115(3), “[wlhether one’s assistance in the sale is ‘material’ does not depend on one’s knowledge of the facts that make it unlawful; it depends on the importance of one’s personal contribution to the transaction.” Prince v. Brydon, 307 Or 146, 149, 764 P2d 1370 (1988). Therefore, a plaintiff pursuing a claim under ORS 59.115(3) does not have to allege and prove that the defendant *62knew that the sale was unlawful. Instead, the defendant bears the burden of proving, as an affirmative defense to liability, that he or she was reasonably ignorant of the illegal nature of the sale. ORS 59.115(3).
For instance, the majority expresses a concern that attorneys will be held liable simply for giving legal advice. Í50 Or App at 46-47. It states, “[¡Inevitably, the advice and assistance rendered to a client as part of such relationships will, for the purposes of litigation, constitute‘substantial assistance!.]’ ” Id. That assumption is without support. In fact, the Supreme Court has suggested that, in the securities context, attorneys may not be held liable “solely [for] the preparation of documents and other services normally performed by a lawyer for his client.” Gonia v. Estep, 251 Or 431, 433, 446 P2d 114 (1968). Further, the Restatement suggests a number of factors that can be considered to determine whether substantial assistance has been rendered, which could reduce the importance of the majority’s concern. See Restatement (Second) of Torts § 876, comment d.
Moreover, the imposition of liability in this context requires the factfinder to find that the attorney knew that he or she was assisting in the commission of a tort. I know of no reason why an attorney should be insulated against liability for knowingly assisting someone to commit a tort.