Oregon State Bar
Meeting of the Board of Governors
June 2-3, 2000 – Lake Oswego
Mission Statement: The mission of the Oregon State Bar is to serve justice by promoting respect for the rule of law, by improving the quality of legal services, and by increasing access to justice.
Open Session Minutes
The meeting was called to order by President Rew on Friday, June 2, 2000 at 1:10 p.m. The open session on Friday was from 1:10 p.m. to 2:25 p.m. and from 3:35 p.m. to 5:05 p.m.; and from 8:10 a.m. to 12:00 p.m. on Saturday, June 3, 2000 (recessed to the Judicial Proceedings agenda from 2:25 p.m. to 2:35 p.m., and recessed to the Executive Session agenda from 2:35 p.m. to 3:35 p.m. on Friday, and from 8:05 a.m. to 8:10 a.m. on Saturday). All members of the Board of Governors were present with the exception of Jim Sumner; Mary Burrows by phone on Friday from 1:10 p.m. to 1:30 p.m. and on Saturday from 10:30 a.m. to 12:00 p.m.; Mr. Harnden from 4:00 p.m. to 4:30 p.m. on Friday; Mr. Hytowitz from 8:05 a.m. to 8:35 a.m. on Saturday; Ms. Rinehart from 8:05 a.m. to 9:10 a.m. on Saturday; and Ms. Sowle from 10:55 a.m. to 12:00 p.m. on Saturday. Staff present, for all or portions of the meeting, were Karen Garst, Executive Director; Susan Grabe, Public Affairs Attorney; Sandy Hise, Executive Assistant; Bob Oleson, Public Affairs Director; Kay Pulju, Communications Manager; George Riemer, General Counsel; Jeff Sapiro, Disciplinary Counsel; and Lisa Sindlinger, CLE Publications Manager. Present for PLF matters on Friday were PLF directors Tom Peachey (chair) and Bill Martin and PLF staff Tom Cave, Jeff Crawford, and Bruce Shafer. Also present were Lisa LeSage, Nancy Cooper, John Ransom, Diana Stuart, Kris Winemiller, Kristena LaMar, Ulys Stapleton, Marilyn Cover and Jack Lundeen.
1.Professional Liability Fund
A.PLF Bylaws 3.1 and 3.2 – PLF Director Terms
Mr. Peachey presented amendments to PLF Bylaws 3.1 and 3.2. These changes will make the term of a PLF director begin on January 1 of the year following appointment, and would effectively extend the term of current directors by an additional three months.
Action:Mr. Tyner moved, Mr. Williamson seconded, to approve amendments to PLF Bylaws 3.1 and 3.2 – PLF Director Terms. The motion was approved by the board (15-0-1; absent Sumner).
B.PLF Policy 3.150 – Exemption for Independent Contractor for Government Entity
Mr. Peachey recommended the proposed amendment to PLF Policy 3.150(G)(11) to permit a lawyer who works for a government entity as an independent contractor to claim PLF exemption, so long as the entity realizes the lawyer is not in private practice and is not carrying PLF coverage. A discussion ensued about indemnity for agents of the state and other attorneys working as independent contractors. Mr. Riemer indicated that further investigation of this matter by the PLF staff may be warranted.
Action:Mr. Baldwin moved to table the matter pending further investigation as described in the preceding paragraph. The motion was approved by the board (15-0-1; absent Sumner).
C.PLF Policy 5.200(F) – Investment Guidelines
Mr. Cave discussed amendments to PLF Policy 5.200(F) resulting from the PLF's annual review of the Fund's long-term investment goals. The amendment upwardly revises total equity investments from 45 to 50 percent, and investments in international equities from 5 to 15 percent. Mr. Cave described the positive effect on returns by international equities when other equities are in a down cycle.
Action:Mr. Baldwin moved, Mr. Williamson seconded, to approve amendments to PLF Policy 5.200(F) – Investment Guidelines. The motion was approved by the board (15-0-1; absent Sumner).
D.Long Range Planning Committee meeting – June 23
Mr. Peachey reviewed the information previously sent to the BOG regarding proposed amendments to PLF Policy regarding its mission statement and goals, various claims handling practices, file repair, and communications with Defense Panel members. The PLF rescheduled this meeting from April 14 to June 23 and encouraged members of the BOG to attend if possible.
E.Year-End 1999 PLF Report
Mr. Cave presented highlights of the 1999 PLF Year-End Report shown on agenda exhibit pages 144-171. He indicated that the increase in claims frequency in 1999 was more than offset by a decrease in severity or average size of claims. Year-to-date investment results around 10% were led by returns on common stock. The cost of excess insurance continues to go down and healthy retained earnings surpluses have been realized by both the primary and excess programs. This puts the PLF in position to have stable assessments for a number of years. A question and answer session ensued.
2.Rules and Ethics Opinions
A.Legal Ethics Committee
Mr. Williamson introduced Nancy Cooper and Ulys Stapleton who were present from the Legal Ethics Committee (LEC) to discuss the following:
1.Proposed Formal Ethics Opinion 2000-160 - Former State Public Defender in Private Practice
Ms. Cooper introduced the opinion, which addresses the conflicts that can result when a former state public defender enters private practice handling post-conviction relief for private clients. She felt the LEC's analysis did a thorough job reviewing the applicable DRs and considering the conflicts of interest that may arise in this situation. Mr. Tyner posed several questions and Ms. Cooper reviewed the committee's methodology in preparing this opinion.
Action:Mr. Williamson moved, Ms. Sowle seconded, to approve Formal Ethics Opinion 2000-160 - Former State Public Defender in Private Practice. The motion was approved by the board (13-1-2; no Tyner; absent Burrows, Sumner).
2.Proposed Formal Ethics Opinion 2000-161 - Investigator’s Contact with Represented Persons
Mr. Stapleton discussed the opinion which deals with the extent to which an assistant attorney general can advise an agency investigator about contacting a represented person while investigating statutory or regulatory violations. He described the LEC's review process which included a proposed 'laundry list' of eleven questions from the Attorney General's Office. The list was subsequently abandoned in favor of guidelines which the committee felt would work in most situations. Mr. Stapleton indicated that the proposed opinion under consideration was not submitted to the AG's Office and may, therefore, be unpopular with them. Mr. Williamson indicated that the LEC had spent more time on this opinion during the past year than any other.
A lengthy discussion ensued regarding the nature of the AG's relationship with state agencies, the time involved in developing this opinion, related items in the criminal area defined by statute, attorney/client relationship considerations, and the ongoing debate on the criminal side of this issue.
Action:Ms. Cohen moved, Mr. Hytowitz seconded, to approve Formal Ethics Opinion 2000-161 - Investigator’s Contact with Represented Persons. The motion was approved by the board (12-1-3; no Tyner; absent Burrows, Naucler, Sumner).
3.Proposed Formal Ethics Opinion 2000-162 - Public Employee Attorney Strikes
Ms. Cooper reviewed the history of this matter relating to the unions of the Assistant Attorney Generals (AAG) and Multnomah County DDAs. The proposed formal ethics opinion concludes that the ethical obligations of public employee attorneys do not absolutely preclude strikes. It addresses appropriate steps to avoid ethical breaches and to not violate the DRs. She indicated that this opinion may not be favored by the attorneys it effects.
Action:Ms. Cohen moved, Mr. Hytowitz seconded, to approve Formal Ethics Opinion 2000-162 - Public Employee Attorney Strikes. The motion was approved by the board (13-0-3; absent Burrows, Sumner, Tyner).
3.OSB Committees, Sections, Councils, Divisions and Task Forces
A.Client Security Fund
1.Request to reconsider board action on CSF Claim No. 99-39 – Simpson vs Gloyn
Mr. Scott presented the request of the CSF Committee that the BOG rescind its previous approval of Simpson vs Gloyn and refer it back to the committee. He reviewed the background of the matter and the pending criminal investigation of Mr. Simpson. Until it has been determined whether Simpson paid Gloyn with improperly obtained funds, the CSF Committee believes the claim should not be paid.
Action:Mr. Scott moved, Ms. Sowle seconded, to rescind approval of CSF Claim No. 99-39 – Simpson vs Gloyn. The motion was approved by the board (12-1-3; no Lopez; absent Burrows, Sumner, Tyner).
B.Indigent Defense Task Force
1.Indigent Defense Task Force III recommendations
Mr. Orf welcomed members of the Indigent Defense Task Force (IDTF) -- John Ransom, Diana Stuart, Kris Winemiller -- and staff liaison Lisa Sindlinger. Ms. Winemiller reported that the IDTF Phase One report is not substantially changed from the draft presented at the January, 2000 BOG meeting. She discussed the ongoing charge and development of Phase Two by Fall, 2000 to be included in the final report. Ms. Winemiller asked the board for feedback on proposed changes to the IDTF charge: (1) Consider including classes of constituents that may go unrecognized, e.g., mental health patients or non-English speaking people. (2) Bring others with strong backgrounds in criminal law into the discussion of the issues. She also requested guidance regarding selection and appointment of others to the task force.
The ensuing discussion included suggestions to contact the Mexican Consulate about assistance for Hispanic people, self-selection of people to serve on the task force for consideration by President Rew, and targeting a mid-fall, 2000 completion date for the final IDTF III report.
There was consensus for the IDTF to proceed as discussed without amending its charge. Ms. Stuart requested permission to use Listserves to elicit feedback on the report and to alert others about the needs of the task force. The report will be made available on the OSB web site.
C.Recommendations of the Attorney Mediation Study Group
Mr. Williamson welcomed Judge Kristena Lamar, Attorney Mediation Study Group Chair. Judge Lamar presented the history of the amendments to DR 5-106 that have been presented at the 1998 and 1999 HOD Meetings. The study group pulled together all the stakeholders and agreement was reached in all amendments with the exception of 5-106(C). A questions and answer period ensued including a concern that mediators do not carrying malpractice insurance. Mr. Riemer suggested that the DR amendments be cross-referenced to the firm unit rule.
Action:Mr. Harnden moved, Mr. Williamson seconded, to approve the amendments to DR 5-106, with a cross-reference to the firm unit rule, to be submitted to the 2000 House of Delegates. The motion was approved by the board (12-1-3; no Naucler; absent Sumner).
4.BOG Committees, Special Committees, Task Forces and Study Groups
A.PLF Policies & Procedures Task Force
Mr. Rew indicated the task force will hold its next meeting on June 9 and will have a final report by the end of June. Nine meetings have been held to date to study PLF claim strategies and trial practices in relationship to OSB disciplinary rules and professionalism standards. In addition, task force members have personally interviewed a number of attorneys. He praised the work of Mr. Riemer and the participation of PLF staff - Kirk Hall, Barbara Fishleder and Bruce Shafer.
B.Special Committee on PLF Governance
1.Discussion of PLF Governance matters
Chair Ed Harnden described the work of the Special Committee on PLF Governance which includes BOG members Joyce Cohen, Angel Lopez, and Charlie Williamson, and PLF directors Gary Ackley, Bill Martin, Bob Theummel and Ric Weaver. Management consultant Steven Hacker has done an outstanding job to facilitate the meetings to: (a) Align the missions, goals and values of the PLF and the OSB. (b) Define communications channels and formats. (c) Delineate authority of the BOG and the BOD in various areas. Mr. Harnden indicated the committee is nearly two-thirds done with its work and discussed the attached graphic which summarizes a packet of information being developed. The evaluation started with reviewing the past in regard to what has been done well (Encores) and what has not been done well (Never Agains). An evaluation of the present situation itemized 'What's Working' and 'What's Not Working.' The 'Lessons Learned' represents the initial items proposed to be resolved short term and long term. The committee is at the point where it's beginning to define additional activities and make recommendations on how to move forward, assign timelines, and measure progress.
EXHIBIT, p. 1
Mr. Harnden indicated the committee will begin delineating authority and addressing bylaws at its next half day meeting on June 10. Its most difficult task may be to address hiring and termination authority for the PLF CEO, as well as input to and management of that person’s performance evaluation process. A concept being considered is a super-majority vote by those in authority to take action on termination matters. Ways to jointly facilitate BOG/BOD input in the evaluation process were discussed.
Mr. Davis asked, 'Why should it take a super-majority vote to terminate the PLF chief executive officer when it takes a majority vote to terminate the OSB executive director.' There was agreement that this process should be held to the same standard for both executives.
Mr. Baldwin indicated that the ultimate question should be whether the PLF CEO feels accountable to the PLF Board or to the BOG. He felt one of the big problems over the past several months was that Mr. Hall had no accountability to the BOG. Mr. Harnden explained the focus of the special committee has been broad up to this point and the 'nitty gritty' issues will be addressed at the next meeting.
Mr. Lopez suggested that two members of the BOG (with overlapping terms) be appointed as liaisons to attend PLF board meetings to maintain a sense of institutional memory and improve communications. Conversely, there should be a PLF director assigned to attend BOG meetings and keep the board informed about PLF issues. He also proposed a 'radar screen committee' to proactively address issues before they get out of control, comprised of two attorney members and one public member from the PLF and the same from the BOG. The charge of the committee would expect the PLF CEO to give notice when unique issues arise relating to claims defense strategy.
Ms. Cohen discussed confusion regarding the titles for the top executives of the Oregon State Bar and the Professional Liability Fund. She and Ms. Burrows felt it made little sense to use the title of chief executive officer for the PLF because it is perceived as having higher status than the executive director of the Oregon State Bar. Ms. Rinehart suggested the titles might be Director of the PLF and Executive Director of the Oregon State Bar. Mr. Davis expressed his agreement and felt the organization has structured itself incrementally over time without careful regard to such matters. He asked the committee to take these concerns on and to include them in its broad recommendations to the board.
Action:Mr. Davis moved, Mr. Baldwin seconded, to waive the one meeting notice and to direct the PLF Board of Directors to terminate all relationships with Kirk Hall, effective June 9, 2000. The motion was subsequently withdrawn.
Mr. Peachey explained that the BOD is considering a proposal that Mr. Hall be involved in preparation and presentation of reinsurance issues on behalf of the PLF with Lloyds of London this fall. That is the only activity anticipated to involve Mr. Hall subsequent to his resignation. He explained that Mr. Hall's expertise is desired because, of the $1.5 million in fund income from fees, $679,000 is related to reinsurance. Mr. Peachey hoped the BOG would not seriously consider the motion because it would do the PLF a great disservice. Discussion ensued about the timing of when Mr. Hall would no longer be employed by the PLF.
Action:Mr. Davis moved, Mr. Baldwin seconded, to direct the PLF Board of Directors to retain Ed Harnden as interim CEO of the Professional Liability Fund until December 31, 2000; and if the CEO position is not filled permanently by that time, that Mr. Harden continue until it is filled.
Mr. Davis indicated that, as the interim PLF CEO, Mr. Harnden could decide if there are specific and continuing roles for Mr. Hall. It was clarified that the BOG has the authority to direct the PLF Board in this matter and it is the PLF Board’s decision how to proceed. Mr. Harnden indicated he had discussed this proposal with Mr. Peachey and Mr. Rew and excused himself from the room while it was being considered.
Discussion about the motion included the following: (1) Get over Kirk Hall and move on. He's signed his resignation and there is an effective date. His sole purpose is to assist the BOD with its June 23 board meeting and the reinsurance matter in London. Don't micro-manage the PLF. (2) Not certain it makes sense to appoint an interim CEO in view of the current executive search process that is underway. This runs counter to the spirit of cooperation in progress with the BOD and BOG. (3) The thing the board really wants to know is when will Mr. Hall be done?
Mr. Peachey explained that Mr. Hall is no longer the chief executive of the PLF, his resignation was accepted, and the BOD directed and appointed an interim executive committee to act in his place, effective June 1, 2000. Mr. Peachey indicated he is not serving as the interim director. Mr. Hall is finishing up some work that will be completed next week, he will not be at the June 23 PLF board meeting, and he will probably conduct the PLF reinsurance meeting in London in mid-October as an independent contractor. Mr. Davis responded that his second motion would leave the decision to Mr. Harnden whether Mr. Hall works as an independent contractor for the PLF.
Discussion continued as follows: (1) Disagreement with the PLF Board's resolution and Mr. Peachey's comments about all the reasons they don't need an interim director. They do need a director and public perception insists they have one until the position is permanently filled. (2) This doesn't mean Ed Harnden should fill that role. Before voting on the motion we need to know a lot more about his credentials and competence to fill the interim PLF CEO position. (3) This is a damaging precedent in the working relationship between the BOG and the BOD. (4) This is a way for the BOG to exercise its oversight responsibility, finally. This situation has needed clarification for nearly a year. Ed is a person who can provide the stability needed to manage this crisis.
Mr. Harnden's qualifications to be the interim PLF CEO were presented as follows by various board members: (1) He has served on the PLF Board and was its president. (2) If you're concerned about public perception and seeking a quality individual that everyone respects, you couldn't ask for more than Ed. (3) He was the managing partner of Lane Powell for nearly 20 years and is the current managing partner of Barran Liebman. (4) Ed is a litigator. (5) He's willing to served in this interim position. (5) He's universally respected by members of the bar and is the past president of the Multnomah Bar Association. (6) Let's take time to consider this proposal. The PLF has invited the BOG to its June 23 meeting, let's have a joint discussion about the merits of having an interim PLF director.
Mr. Peachey said that directing the BOD to have an interim PLF director at this time would be destructive. He expressed his frustration and the possibility that this action may result in the PLF Board resigning. Under the current governance discussion, the appointment of a member of the Board of Governors would be the last person the BOD could consider asking to serve as interim PLF CEO, in spite of the outstanding person that Mr. Harnden is. The BOD has invited the BOG to attend its June 23 meeting in Grants Pass to discuss interim management. He requested the BOG consider postponing action on the motion until a joint discussion can be held with the PLF Board.
Mr. Lopez commented that it was also inappropriate for the PLF Board to approve a resolution on May 17, without involving the Board of Governors, to not have an interim director and to appoint an executive committee to oversee PLF operations. Ms. Sowle discussed her displeasure about receiving a letter regarding the PLF's interim management resolution without sending a meeting notice to the BOG and also violating the public meetings law. In the same letter OSB staff is blamed, once again, for proposing consideration of an interim director. In the BOG minutes, this was clearly proposed by board members. The process isn't working. Mr. Peachey responded that action has been taken to ensure that the BOG and staff will be notified in the future of PLF Board meetings and conference calls.
Ms. Cohen stated the BOG hasn't taken decisive action and Mr. Davis's motion places on the record the intent to do so. Mr. Peachey’s letters about the PLF resolution (approved at a non-noticed meeting on May 17) and 'staff bashing' remarks made it clear that joint cooperation was not going as smoothly as thought. Mr. Riemer indicated that since the PLF is being criticized for not giving proper notice, the BOG should give the PLF fair notice of further BOG discussion about an interim director.
Action:Mr. Williamson moved to table the main motion. The motion to table was approved by the board (7-6-3; no Baldwin, Cohen, Davis, Naucler, Rinehart, Sowle; absent Harnden, Sumner, Tyner).
Ms. Garst explained that, in the best interests of the organization and with a great deal of experience dealing with governmental relations matters, she and Ms. Pulju spoke with Mr. Peachey recently about what appears to be a train wreck coming at the legislature. There is a legislator that has been contacting Mr. Harnden to inquire how PLF matters are progressing. It seemed appropriate to express these concerns with Mr. Peachey, Mr. Rew and Mr. Harnden. At the May 12 BOG meeting staff said nothing about the appointment of an interim PLF CEO and let the BOG express its views. She explained how the cheap shots at staff have deeply impacted herself, Mr. Riemer and Ms. Pulju over the last six months. Ms. Garst is tired of her integrity being insulted. Staff recommendations were given in the best interest of the organization for the BOG to consider. Mr. Peachey's recent letter brought it all back again. Better communication is needed between the two boards to resolve this problem. Mr. Hytowitz indicated that greater understanding is needed from both boards regarding the toll this situation has taken on the OSB and PLF staff.
Mr. Peachey apologized to Ms. Garst for his letter which he described as a quick response to information he had received about Mr. Harnden being considered as interim PLF CEO without input from the PLF Board. He felt that did not excuse his choice of words and indicated that poor communication has been a problem in dealing with these issues. Mr. Peachey also apologized to the board that his letters have resulted in further misunderstanding.
Ms. Rinehart requested that the BOG schedule a special meeting prior to June 23 to discuss these PLF matters. The meeting recessed at this point on Friday and resumed Saturday morning.
Ms. Cohen distributed the attached resolution to demonstrate the Board of Governors’ support for the tireless efforts of Ms. Garst and Mr. Riemer over the past several months to assist with PLF related issues. Mr. Lopez also proposed a performance bonus for Ms. Garst and Mr. Riemer. It was decided that the Budget & Finance Committee would consider this request at its next meeting.
Action:Ms. Cohen moved, Mr. Williamson seconded, to approve the attached resolution in support of Karen Garst, Executive Director, and George Riemer, General Counsel. The motion was approved by the board (13-0-3; absent Hytowitz, Rinehart, Sumner).
EXHIBIT, p. 2
The board discussed ways to get beyond the personal attacks and stay focused on the real issues and continue to do what is needed to establish more trust with the PLF. Ms. Garst described the nature of the personal attacks and her plans to meet with Mr. Peachey and PLF staff to work through these perceptions. It was agreed that Mr. Rew and Mr. Harnden would continue to answer letters criticizing staff by responding to each author and persons copied on the letter.
Ms. Garst described the PLF Board as very united and interested in maintaining its status quo. She suggested the BOG ask itself what needs to be done to build consensus and take action? What is necessary to be proactive and avoid the train wreck? Ms. Cohen asked the board to figure out a way to provide rational, deliberate, and steady directions to those working on behalf of the BOG. It's a governance issue - not a PLF issue. Mr. Baldwin commented that no implementation will happen without change and the PLF doesn't feel a need to make governance changes.
Mr. Lopez felt it was important to stay the course, come to agreement on a governance structure the BOG can live with, and when that is done have the president write a thoughtful and informative article for the Bulletin. He further proposed: (1) In the PLF executive search interview process to use the completed findings from the PLF Policies & Procedures Task Force and the Special Committee on PLF Governance to educate applicants about the governance expectations and to assure they are in agreement with them before being considered for the position. (2) Then, assure the Board of Governors that the PLF plans to make adjustments to its six-month review plan. (3) If the PLF Board shows any sign of not following the BOG’s directives, make affirmative effort to fill the PLF Board of Directors with individuals who will follow the directives of the BOG. Ms. Garst asked Mr. Lopez, what is the consensus of the BOG? How can a decision be made to line up with the BOG if the desired direction is not defined and agreed upon? Mr. Lopez indicated that the board is one meeting away from having the product she is asking about. He expects a 100 percent show of support from the BOG as it moves away from being split on these matters.
Action:Mr. Tyner moved, Mr. Williamson seconded, to approve the items proposed by Mr. Lopez in the preceding paragraph. The motion was subsequently withdrawn.
Mr. Davis asked board members to consider if any of them disagreed that the minimum expectation from the Special Committee on PLF Governance should be a bylaw amendment that places the PLF CEO under the direct supervision of the Board of Governors. Ms. Cohen wondered how the PLF Executive Search Committee can be expected to provide clarity to candidates about the governance issue and reporting structure if the decision will not be made until the July BOG meeting. Mr. Rew felt the interviews would not be conducted until August.
Discussion centered on adjustments to the recruiting process, the PLF CEO position description, and implementing changes to the existing PLF culture to align with changes to be made in the PLF governance structure. It was agreed that it is critical to identify whether the PLF CEO is accountable to the Board of Governors or the PLF Board - two bosses will not work. It was recognized that without this clarity highly qualified people will not be interested in the position. In regard to Mr. Lopez's motion it was expressed that more specific direction was needed rather than sending a group off to negotiate outcomes with the PLF. It's a governance issue - to decide who's in charge.
The discussion continued regarding how to reach consensus with the BOD and to effectively transition oversight to the BOG in the PLF CEO hiring, firing and evaluation process.
Mr. Davis suggested a simple motion that the BOG direct the Public Affairs Committee to draft legislation to separate the PLF from the Oregon State Bar. He felt it’s a clear, single issue - either the BOG is in charge or the organizations are separate. Ms. Garst proposed a compromise to wait until the end of June for the report the Special Committee on Governance, schedule a special joint meeting of the BOG and BOD, and to delay the PLF executive search until there is clarity on the governance issue. She described the governance issue and search process being at cross purposes that will discourage talented people from applying, according to Mr. Pringle.
The special meeting of the Board of Governors with the PLF Board of Directors will be scheduled on June 30, 2000.
C.Policy & Governance Committee
1.Consider rule change to eliminate term limits for House of Delegates members
Mr. Baldwin recommended adoption of changes to ORS 9.150 that would remove the HOD term limits.
2.Additional technical changes to statute regarding HOD
Mr. Baldwin presented changes to ORS Chapter 9.137-9.152 regarding the House of Delegates to include the following: elimination of committee chairs as ex-officio members, changes to handling of delegate elections and vacancies, public member nomination and appointment, signature requirements of Out-of-State delegates, HOD membership considerations - terms and recall, voting power, rules for conduct of business meetings, participation by non-delegates, and minor housekeeping changes.
Action:The Policy & Governance Committee moved to approve amendments to ORS Chapter 9.136-9.152 to be submitted to the 2000 House of Delegates. The motion was approved by the board (15-0-1; absent Sumner).
3.Bylaw and BOG Policy amendments regarding SLAC
Mr. Baldwin reviewed proposed amendments to OSB Bylaw 16 and BOG Policies Chapter 13 to conform to amendments to ORS 9.545 (the SLAC statute) approved by the 1999 Legislature.
Action:The Policy & Governance Committee moved to approve amendments to OSB Bylaw 16 and BOG Policies Chapter 13. The motion was approved by the board (15-0-1; absent Sumner).
4.Technical corrections to BOG Policies
Mr. Baldwin discussed technical corrections to BOG Policies 3.700 and 3.710 regarding House of Delegates and Biennial Convention matters.
Action:The Policy & Governance Committee moved to approve technical corrections to BOG Policies 3.700 and 3.710. The motion was approved by the board (15-0-1; absent Sumner).
5.Automation of section renewal
Mr. Baldwin reviewed the recommendation to automatically bill renewals for section memberships on the 2001 membership fee statement. The section name and amount would be preprinted in the voluntary portion of the fee statement. Members would have the option of adding or discontinuing any or all section membership.
Action:The Policy & Governance Committee moved to approve automation of section memberships effective with the 2001 membership fee statement. The motion was approved by the board (15-0-1; absent Sumner).
6.Consider items related to section contributions
Mr. Baldwin indicated this matter would be carried over to the July BOG meeting. In the meantime, OSB sections will be asked for feedback about the proposed policy to address section contributions.
D.Budget & Finance Committee
1.Proposal to fund CLE publications with member assessment
Mr. Scott discussed the Budget & Finance Committee’s recommendation to develop a proposal for the House of Delegates that would make CLE publications available to the membership on the internet, eliminate the publishing of the printed books, and fund the activity with a mandatory annual assessment of all active members. Ms. Garst indicated that a specific proposal would be developed to address savings and the amount of the assessment. She indicated this idea resulted from the committee’s discussion regarding a $90,000 loss CLE publications in 1999. A discussion of the pros and cons of the matter ensued.
Action:The Budget & Finance Committee moved to submit to the 2000 House of Delegates a proposal to make CLE publications available to the membership on the internet, eliminate the publishing of the printed books, and fund the activity with a mandatory annual assessment of all active members. The motion was approved by the board (15-0-1; absent Sumner).
2.Proposed member fee increase for 2001
Mr. Scott reviewed the recommendation to develop an executive summary budget for 2001 which would include a small increase in the member fee (originally estimated at $20 to $25). Discussion centered around including potential new or enhanced programs in 2001 and whether to propose a larger fee that will cover operating projections over the next 3 years
Action:The Budget & Finance Committee moved to develop an executive summary budget/decision packet for the 2001 OSB Budget to include a member fee increase to cover operating projections for 2001-2004 . The motion was approved by the board (14-0-2; absent Burrows, Sumner).
E.Public Affairs Committee
1.Status of legislative races and judicial resource activities
Mr. Orf reported it appears the majority in the house will be narrowed to a 50/50 split between the parties. He also discussed the high profile judicial campaign between Gary Berne and Judge Paul DeMuniz for a Supreme Court vacancy.
2.Update on measure (SJR7) involving judicial appointments
Mr. Orf indicated that the revised pre-session version of SJR 7 (re judicial appointment process) is expected to be finalized this fall and submitted to the 2001 legislative session by the Interim Judiciary Committee. The bar’s Judicial Administration Committee will continue to monitor the evolution of this potential ballot measure.
3.Review of pre-session law improvement proposals from various bar groups
Mr. Orf presented recommendations from the Public Affairs Committee to ratify the 2001 legislative package. Mr. Orf reviewed the various legislative proposals from sections and committees. Interim bill drafting was initiated prior to the board meeting due to legislative deadlines.
Action:The Public Affairs Committee moved to ratify the OSB 2001 Legislative proposals shown on agenda exhibit pages 54-61. The motion was approved by the board (14-0-2; absent Burrows, Sumner).
Mr. Orf and Mr. Harnden praised the work of the Public Affairs staff for preparation of an excellent legislative package.
F.Strategic Planning Committee
1.Proposed BOG MDP resolution to OSB House of Delegates
Mr. Davis presented the Strategic Planning Committee’s proposed BOG resolution to the OSB House of Delegates asking the House to approve the development of specific disciplinary rules in Oregon to permit MDP, as limited by the terms of the resolution. Mr. Williamson asked that the resolution include a statement that any disciplinary rules allowing MDP would ultimately have to be approved by the Oregon Supreme Court to become effective. Mr. Davis accepted Mr. Williamson’s friendly amendment. Mr. Davis also indicated that the Strategic Planning Committee recommended the BOG recommend to the OSB’s ABA Delegates that they oppose the ABA MDP Commission’s resolution on this topic on the agenda of the ABA House of Delegates meeting in July, 2000.
Action:The Strategic Planning Committee moved that the BOG approve the committee’s proposed BOG resolution on MDP, as amended, for presentation to the OSB House of Delegates at its meeting in September and to recommend to the OSB’s ABA Delegates that they oppose the ABA MDP Commission’s resolution on this topic at the ABA House of Delegates meeting in July in New York City. The motion was approved by the board (13-1-2; no Hytowitz; absent Burrows, Sumner).
EXHIBIT, p. 3
G.Awards Special Committee
1.Recommendations for the Award of Merit and the President’s Awards
Mr. Hytowitz presented recommendations for recipients of the Award of Merit and President’s Awards for Membership Service and Public Service. He reviewed the Awards Special Committee’s selection process and explained that no recipient was recommended this year to receive the President’s Affirmative Action Award.
Action:The Awards Special Committee moved to approve recipients for the 2000 Award of Merit and 2000 President’s Awards for Membership Service and Public Service as shown on agenda exhibit page 91. The motion was approved by the board (13-0-3; absent Burrows, Sowle, Sumner).
H.Access to Justice Committee
1.Status of Legal Needs Assessment Report
Mr. Harnden reported the Legal Needs Assessment Report was being drafted and is expected to be in final form in two or three months.
2.Report on Citizens’ Justice Conference
Mr. Harnden reported on the big turnout at the Citizen’s Justice Conference held May 6 in Portland. Nearly 400 people registered and feedback from participants was very favorable. He indicated that a second set of conferences is being considered for Southern Oregon and Eastern Oregon. A report on the conference will be presented to Chief Justice Carson for the Justice 2020 Program and at the ABA meeting in New York. Mr. Harnden praised the work of Judge Ellen Rosenblum, Kay Pulju and the Communications staff for making this event a success.
I.Executive Director Review Special Committee
1.Proposed process/timeline for 2000 executive director performance review
Ms. Sowle indicated this item would be carried over to the July board meeting.
J.Public Member Selection Special Committee
1.Recommendation to appoint Bruce Anderson to fill James Sumner’s unexpired term
Ms. Cohen presented the recommendation of the committee to appoint Bruce Anderson to fill the unexpired term of public member James Sumner.
Action:The Public Member Selection Special Committee moved to appoint Bruce Anderson to fill the unexpired term of public member James Sumner (through December 31, 2002). The motion was approved by the board (13-0-3; absent Burrows, Sowle, Sumner).
K.Annual Meeting Study Group
Mr. Williamson reported that the Annual Meeting Study Group will meet on June 14 to review results of a member survey to determine interest in reviving the OSB Annual Meeting. He indicated that staff has proposed ways to make the biennial meeting more attractive. A final report is anticipated for the July board meeting. A discussed ensued about whether the membership feels disenfranchised by the House of Delegates business meeting process.
5.Report of Officers
A.Report of the President
1.Meeting with Chief Justice Carson
Mr. Rew discussed highlights of the April 26 meeting with Chief Justice Carson that he attended with Mr. Harnden, Mr. Riemer and Mr. Oleson.
2.Local bar and editorial board visits to Central Oregon, Southern Oregon, Eastern Oregon, Tillamook County, Washington County and Yamhill County
Mr. Rew reported on the success of local bar visits including week long trips to Southern Oregon and Eastern Oregon. He thanked Ms. Garst for her participation in the road trips. Mr. Oleson also participated in the Southern Oregon trip and Ms. Walsh participated in the Eastern Oregon trip. He indicated that Kateri Walsh, Media Relations Coordinator, has done a tremendous job to improve the awareness of the media about the Oregon State Bar and its work. Mr. Davis commented on the importance of continuing this outreach to the members and the community throughout the state.
B.Report of the President-Elect
Mr. Harnden indicated his report would be carried over to the July board meeting.
C.Report of the Executive Director
1.Ms. Garst passed out the 1999 Program Measurement Review booklet and indicated an interest in hearing feedback about the report. She will be doing a presentation in July on the OSB program measurements at the joint National Association of Bar Executives/National Conference of Bar Presidents in New York.
2. Ms. Garst described efforts to arrange a meeting to discuss MDP with the bar association in France while she vacationing in June. The response she received indicated that MDP is not expressly authorized there.
A.House of Delegates
1.Issues for 2000 HOD Meeting
Ms. Garst asked the board to consider issues for discussion at the 2000 HOD Meeting on September 23. There was consensus to plan a CLE on MDP prior to the HOD meeting. The importance to select and inform presenters for various resolutions was also discussed.
2.Plans for regional HOD meetings
Ms. Garst indicated that reminders to the delegates and agenda materials for the first round of HOD regional meetings, June 19-29, would be forthcoming. The meeting schedule is available in the House of Delegates Handbook on the HOD web page.
C.Proposed Admissions Rule for Corporate Counsel
This agenda item was carried over to the July board meeting.
D.Consider proposal for BBX to study admission rule to allow out-of-state lawyers to practice law for legal aid and other non-profit
This agenda item was carried over to the July board meeting.
E.Classroom Law Project report
A status report on the Classroom Law Project (CLP) was presented by Marilyn Cover, Executive Director, and CLP board member Jack Lundeen. Ms. Cover thanked the Board of Governors for its funding to further work to educate children about the legal system. She provided highlights of various programs including the Youth Summit on Violence in Schools (November, 1999), the 2000 Oregon Mock Trial Competition (March, 2000), and 2000 Law Day Conference (May, 2000) with 560 students participating.
Mr. Lundeen described the pleasure he takes in coaching students how to work as a team in the Oregon Mock Trial Competition. He described it as an opportunity to not only have fun, but to dispel negativity about the image of lawyers. Mr. Lundeen also addressed the need for more funding and staffing for the CLP.
Ms. Cover indicated she would be interested in having a BOG member serve as a contact with the Classroom Project. She described materials that the OSB will distribute in packets to bar leaders and plans for a CLP web page to link to the OSB web page. Ms. Cover talked about dreams to sponsor youth summits around the state and additional resources needed to make it a reality.
Mr. Lopez and Mr. Harnden commended Ms. Cover for the excellence of the Classroom Law Project programs.
F.Resignation of Mitzi Naucler, BOG Region 6
Mr. Rew announced that this was the last meeting for Mitzi Naucler, BOG Region 6. Ms. Naucler has resigned because she and her husband are moving out the state. Mr. Rew asked Mr. Harnden to preside over the meeting while he proposed the following resolution for Ms. Naucler and to temporarily fill the BOG vacancy in Region 6 with David Hittle, Salem. Election results to fill the position should be available on August 25, 2000.
Action:Mr. Rew moved, Mr. Hytowitz seconded, to approve a resolution to thank Mitzi M. Naucler for her service on the Board of Governors (since November, 1999) and her contributions to the Oregon State Bar. The motion was approved by the board (14-0-2; absent Burrows, Sumner).
Action:Ms. Rinehart moved, Mr. Lopez seconded, the appointment of David Hittle to fill the vacancy in BOG Region 6 due to the resignation of Mitzi M. Naucler’s until an election is held to permanently fill the remainder of Ms. Naucler’s 1999-2003 term of office. (The motion was approved by the board (14-0-2; absent Burrows, Sumner).
Action:Mr. Hytowitz moved, Mr. Williamson seconded, to approve the following consent items. The motion was approved by the board (13-0-3; absent Burrows, Sowle, Sumner).
A.Reading and approval of meeting minutes for March 31, 2000 and special meeting minutes for April 14, 2000 and May 12, 2000
1.Appointment to Baker/Grant County LPRC
2.Appointment to Region 2 Disciplinary Board
3.Timeline for Volunteer Opportunity Process
4.Appointments to House of Delegates
5.Appointment to Legal Services Program Committee
6.Appointment of Public Member to Unlawful Practice of Law Committee
7.Appointment to Affirmative Action Committee
8.Appointment of ABA Delegate to attend 2000 Meeting
9.Appointment of Public Member to Klamath/Lake County LPRC
10.Recommendation to Supreme Court for appointment of Public Member to Region 5 Disciplinary Board
11.Appointment to Legal Ethics Committee
12.Appointment to Judicial Administration Committee
EXHIBIT, p. 4
C.Budget & Finance Committee
1.PLF rent for 2000
D.Client Security Fund Committee
1.Grayson v. Gloyn
2.Cowan v. Mannix
3.McDonald v. Miller
Mr. Rew asked the board if it wished to discuss any items on the following default information agenda. There was no discussion.
A.Report of the Executive Director
2.Letter to Chief Justice Carson regarding Rule of Admission 11.05
B.Client Security Fund Committee
1.CSF Claims Report
9.Good of the Order (Non-action comments, information and notice of need for possible future board action)
A.Ms. Garst discussed plans to draft an agenda for the special BOG meeting scheduled on June 30 to get feedback from board members. It will include a joint meeting with the PLF Board to receive the reports from the PLF Policies & Procedures Task Force, the Special Committee on PLF Governance and the PLF Long Range Planning Committee. The BOG will also meet on that date to consider any proposed bylaw changes regarding PLF governance and consideration of an interim director for the PLF.
B.Mr. Rew indicated he would contact Tom Peachey and Roger Pringle about pending decisions that may affect the position description for the PLF chief executive officer.
C.Mr. Baldwin raised questions about how responses are being handled to letters critical of bar staff in PLF matters. He felt it was very important that any response be sent not only to the author of a letter, but also to those copied on the letter. Mr. Harnden proposed sending out letters after the June 30 special board meeting to various individuals who have written these letters to members of the BOG.
D.Ms. Naucler commented on the very personal feelings that she received from PLF staff about OSB management. She was concerned about this 'culture' and how it may impact working relationships with the new PLF CEO. She hoped the board would address this matter.