Oregon State Bar
Meeting of the Board of Governors
November 18, 2000 – Tumalo
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 Saturday, November 18, 2000 at 10:30 a.m. The open session on Saturday was from 10:30 a.m. to 12:00 p.m., 12:45 p.m. to 3:00 p.m., and from 3:30 p.m. to 3:40 p.m. (recessed to the Judicial Proceedings agenda from 12:35 p.m. to 12:45 p.m. on Saturday; and recessed to the Executive Session agenda from 3:00 p.m. to 3:30 p.m.). All members of the Board of Governors were present with the exception of Gordon Davis and Sarah Rinehart from 2:30 p.m. to 3:30 p.m. Incoming board members Ron Bryant, Bill Carter and Lisa LeSage were also in attendance. Staff present, for all or portions of the meeting, were Karen Garst, Executive Director; Sandy Hise, Executive Assistant; Kay Pulju, Communications Manager; George Riemer, General Counsel; and Rod Wegener, Chief Financial Officer. Present were PLF Board liaison Bob Nunn and PLF CEO Ira Zarov. Also present in order of appearance were Mike Greene, Nancy Cooper, David Thornburgh, Pete Sheperd, and John Stevens.
1. Report of Officers
A. Report of the President [Mr. Rew]
1. Welcome to new BOG members
Mr. Rew welcomed new 2001 board members Ron Bryant, Bill Carter and Lisa LeSage. He also thanked PLF Board liaison Bob Nunn and PLF CEO Ira Zarov for participating in the BOG's planning retreat and board meeting.
2. Meeting with Chief Justice Carson
Mr. Rew commented on the October 27, 2000 meeting with Chief Justice Carson which he attended with Ms. Garst and Mr. Oleson. He emphasized the importance to continue these meetings on a regular basis to discuss mutual concerns as well as matters before the legislature.
Mr. Rew discussed the status of filings for 2001 elections of the BOG, ABA delegates from Oregon, and the OSB House of Delegates. The BOG filings are complete with no contested elections in Region 2 or 5. He asked board members to actively contact bar leaders to run for future BOG and HOD positions.
A discussion ensued about the need for the Policy & Governance Committee to study ways of reducing the 14-month lead time required to file for a Board of Governors position.
4. Western States Bar Conference - March 7-10
Mr. Rew described the Western States Bar Conference as an opportunity to learn more about other state bars and he encouraged board members to consider registering for this event.
B. Report of the President-Elect
1. Update on appointment of BOG committees and BOG contacts/liaisons
Mr. Harnden reviewed new BOG committee appointments for 2001 and the process intended to balance participation by board class years and public members. He explained that board members appointed to bar groups requiring extensive contact responsibility had fewer other assignments.
2. Bar Leadership Conference - January 19
Mr. Harnden reviewed the preliminary agenda for the January 19, 2001 Bar Leadership Conference and encouraged a minimum of ten board members to attend. He felt a preliminary meeting to assist board members in facilitating proposed small group discussions may be in order.
3. Rescheduled March/April, 2001 BOG meeting and schedule of 2002 BOG meetings
Mr. Harnden noted the new date for the April 6-7 meeting (formerly March 30-31). The change was necessitated by a conflict with Spring Vacation which now seems to encompass most of the month of March in various Oregon school districts. He encouraged BOG members to calendar the 2001 and 2002 dates on their calendars.
4. Success in funding legal services
Mr. Harnden briefly discussed the success of various groups to secure legal services funding in Oregon.
C. Report of the Executive Director
1. CLE Publications financial concerns
Ms. Garst reported that CLE Publications is continuing to experience a significant budget deficit. She discussed current analysis of the situation which includes the pricing structure of CD ROM products and books, review of industry trends, and a survey of data over the past ten years. She will be bring a comprehensive report to the BOG in January for its review of the financial issues regarding CLE Publications.
2. Rules and Ethics Opinions
A. Legal Ethics Committee (LEC)
1. Proposed Formal Ethics Opinion - Defense Attorneys
Mike Greene, LEC Committee chair, presented the Formal Ethics Opinion proposed to deal with the propriety of a criminal defense attorney discussing a civil compromise with the complaining witness (the victim). Ms. Nancy Cooper, LEC secretary, reviewed revisions to the committee draft to address concerns expressed by Disciplinary Counsel.
Action: Mr. Williamson moved, Mr. Tyner seconded, adoption of Formal Ethics Opinion No. 2000-163- Defense Attorneys, to include revisions shown on the attached exhibit. The motion was approved unanimously by the board.
EXHIBIT, p. 1-2
2. Inquiry regarding legal ethics advice process used by General Counsel's Office
Mr. Riemer presented recent questions raised about the bar's legal ethic advice process. He asked the board to consider whether to study the issues of how the General Counsel's Office documents the ethics advise it gives bar members and whether reliance on such advice should be a defense to formal disciplinary charges.
The board's discussion included the following: (1) The provision of legal ethics advice is extremely valuable as a sounding board for members. (2) The mere seeking of ethics advice should not be a defense in disciplinary matters. (3) Ease of access to discuss legal ethics matters with General Counsel's Office is greatly appreciated. (4) Whether advertisements (formal and informal) for this service should describe it as ethics 'advice' or as 'assistance'. (5) The recent case mentioned in the materials may provide an opportunity to assess the current service and its effectiveness to provide information to members. (6) Explain the service in an upcoming in the Bulletin, and include a disclaimer in advertisements about the service in the Bulletin. (7) Documenting every conversation with a memorandum in the file would be too time consuming.
Mr. Riemer explained that this type of dispute is rare and that the Supreme Court has stated that ethics advice is not a defense. The board reached consensus for Mr. Riemer to include a disclaimer in future legal ethics assistance advertisements and to write a related article for the Bulletin.
3. OSB Committees, Sections, Councils, Divisions and Task Forces
A. Client Security Fund
1. Request to reconsider denial of CSF Claim No. 99-56 – Herndon v. Anunsen
Mr. Scott presented the request of Mr. and Mrs. Herndon for BOG review of the Client Security Fund's denial of their claim for reimbursement for a loss of $3,000 caused by Roger Anunsen. He explained the financial hardship in this situation involving two disabled persons living on disability.
Action: Mr. Williamson moved, Mr. Scott seconded, to approve CSF No. 99-56 – Herndon v. Anunsen. The motion was approved unanimously by the board.
2. Proposal CSF Rule 4.12 regarding referrals to District Attorney
Mr. Scott reviewed the Client Security Fund Committee's recommendation to adopt new CSF Rule 4.12 regarding referral of lawyers to law enforcement agencies. A discussion of the benefits of the new rule included a change to remove the wording relating to the claimant's consent to disclosure and to make it part of the claims form.
Action: Mr. Scott moved, Mr. Williamson seconded, to approve CSF Rule 4.12, excluding the wording, '..when (1) the claimant has consented to the disclosure, and ...' The motion was approved unanimously by the board.
Mr. Harnden thanked Mr. Scott for his hard work with the CSF Committee over the past year.
B. Indigent Defense Task Force
1. Public Defense Services Commission and the related work of the OSB Indigent Defense Task Force
Mr. Orf presented the Indigent Defense Task Force draft report recommendations and explained that the final report will be submitted in January for board action. Procedural modifications proposed by the Public Defense Services Commission are being drafted. Mr. Orf discussed highlights of the work of past Indigent Task Forces. The conclusions and recommendations in the current report are considerably different, reflecting the political and economic realities. He emphasized the importance of the indigent defense roles played by the bar and the legislature. Future areas of study will include non-native English speaking defendants and family courts. He praised the hard work and excellence of the task force and chair Kris Winemiller. Mr. Orf described the board's support of indigent defense as an important component to the success of access to justice.
A discussion ensued about the budgetary impact, legislative strategies and ways to involve various bar groups to facilitate this process. Ms. Garst suggested that the Public Affairs Committee monitor the implementation of indigent defense task force recommendations and related legislative matters. Mr. Harnden felt that further discussion was warranted and that involvement of the Access to Justice Committee in the implementation of the Indigent Defense Task Force Report recommendations be considered.
Action: Mr. Rew moved, Mr. Harnden seconded, to commend the Indigent Defense Task Force III for its hard work. The motion was approved unanimously by the board.
4. Appearances/Special Issues
A. Report from the Future of the Courts Committee
Mr. Bridges discussed his participation as a member of the bar's Strategic Planning Committee serving as its liaison to the Future of the Courts Committee. Since 1992, the Judicial Department has asked judges, court administrators and staff, other partners in the justice system, local communities and members of the public how Oregon's courts should meet its responsibility to the public in the future.
The committee has renewed the Justice 2020 vision and now seeks feedback from important stakeholders such as the Board of Governors. Mr. Bridges asked board members to consider providing input as outlined on agenda exhibit pages 70-79. Chief Justice Carson will use this information as a road map to work with the legislature.
B. Keller objection concerning HOD resolution supporting the passage of Initiative Measure 94
Mr. Riemer asked the board to consider what action to take concerning the attached letter from twenty-six Washington County deputy district attorneys (DDAs). The DDAs request a refund of the portion of their membership fees that went to the passage of Delegate Resolution 4 at the OSB House of Delegates meeting in September and, apparently, that went to the bar's implementation of the resolution. Options to resolve the matter were discussed including further communications with the DDAs and ways to estimate the cost allocated to this matter.
Action: Mr. Williamson moved, Mr. Hytowitz seconded, to offer to the twenty-six Washington County deputy district attorneys to submit their objection to binding arbitration under the BOG's Keller policy. The motion was approved unanimously by the board.
5. BOG Committees, Special Committees, Task Forces and Study Groups
A. DR 1-102(A)(3) Study Group
1. Proposed DR 1-102(A)(3) amendments for referral to the HOD
Mr. Greene, DR 1-102(A)(3) Study Group Co-Chair, presented the proposed recommendations of the study group to forward two alternative proposals for amending DR 1-102 to the House of Delegates. He described the process, deliberations, and passionate discussions by the fourteen-member study group in its three meetings held in one month.
Two questions were considered: Should the Disciplinary Rules be amended in light of the Oregon Supreme Court decision in the case of In Re Gatti? If so, how should they be amended? There was agreement by the majority and minority groups that rules in this area should apply to all lawyers and that any distinctions should be as narrow as possible. Mr. Greene asked the BOG to consider sending the matter to the HOD on an expedited basis.
Mr. Williamson presented the majority report which concluded that good public policy requires that lawyers be permitted to engage in covert activities to enforce laws and rights that cannot be as effectively enforced in any other way. He urged the board to call a special meeting of the House of Delegates to discuss the matter.
Mr. Greene presented the minority report summation which supported the Oregon Supreme Court's decision in In Re Gatti and opposed any changes to the disciplinary rules. He indicated the Legal Ethics Committee was also in agreement that this was an unnecessary and an improper use of the disciplinary rules.
A discussion ensued about a wording change and plans to schedule a special HOD meeting no later than January. The board discussed the pros and cons of the special meeting and the option to pursue a legislative solution. Others present for this discussion were David Thornburgh (study group member), Pete Sheperd (study group member), and John Stevens (Radio Free Oregon Reporter).
Action: Mr. Williamson moved, Mr. Harnden seconded, to schedule a special House of Delegates meeting on Friday, January 19, 2001, to present the attached proposed amendment to amend DR 1-102 to the House of Delegates for adoption pursuant to the terms of ORS 9.490(1). The motion included the board's 'formulation' of the amendment for presentation to the HOD as required by the statute. The motion was approved by the board (14-2-0; no Anderson, Cohen).
EXHIBIT, p. 3
B. Policy & Governance Committee
1. Future of MCLE Committee
Mr. Baldwin presented the recommendation to continue the MCLE Committee indefinitely.
Action: The Policy & Governance Committee moved to continue the MCLE Committee indefinitely. The motion was approved unanimously by the board.
2. Proposed 2001 OSB committee charges
Mr. Baldwin presented the 2001 OSB committee charges as shown on agenda exhibit pages 82-104 and the attached MCLE Committee charge.
Action: The Policy & Governance Committee moved to approve the 2001 OSB committee charges as described above. The motion was approved unanimously by the board.
EXHIBIT, p. 4-5
C. Budget & Finance Committee
1. 2001 OSB Budget
Mr. Scott discussed priorities identified in the board's strategic planning process the prior day. In that regard, he recommended approval of the baseline budget portion of the 2001 OSB Budget to cover normal operating expenses and items previously approved by the BOG.
Ms. Garst addressed the overhead expense allocated to the Oregon Law Foundation in addition to its staff support. She proposed revising OLF's contract at a flat $20,000 plus annual 'cost of living' adjustments in order to establish a more predictable overhead cost for the OLF.
Discussion ensued about future dues increases and the status of the OSB's mortgage prepayment fund. Mr. Wegener indicated that the Budget & Finance Committee would address, on an upcoming BOG agenda, the OSB mortgage repayment fund and the prepayment opportunity available November, 2001.
Action: Mr. Scott moved, Mr. Williamson seconded, to approve the baseline 2001 OSB Budget (normal operating expenses and items previously approved by the BOG) and to adjust the overhead expense for the Oregon Law Foundation to $20,000 plus future COLA adjustments. The motion was approved unanimously by the board.
D. Public Affairs Committee
1. Update on general election results
Mr. Orf discussed various election updates and that LC 84, regarding judicial selection, is now back up and has been filed. It will be tracked closely over the next session.
2. Recent committee meetings and new developments on major legislative
Mr. Orf indicated that the bar pre-filed bar its bills for the 2001 Legislative Session on November 15, 2000.
E. Access to Justice Committee
1. Legal Needs Assessment Report
Ms. Garst was asked to speak to the joint venture of the Oregon State Bar, the Campaign for Equal Justice and the Oregon Law Foundation concerning enhanced access to justice and concerning the work of the Lindauer Group. She reported on testimony at the Interim Judiciary Committee on November 15.
Mr. Harnden discussed the Legal Needs Study executive report and its high level steps to improve Access to Justice. He asked the BOG to accept the report and assign its implementation to the Access to Justice Committee.
Action: The Access to Justice Committee moved to accept the full report 'State of Access to Justice in Oregon, Part II - Improving Access to Justice' and assign implementation from Part II to the BOG Access to Justice Committee, with the assistance of the study oversight committee. The motion was approved unanimously by the board.
Mr. Harnden presented the Access to Justice Committee recommendation to jointly develop criteria to apportion endowment funds from the Oregon State Bar, the Oregon Law Foundation and the Campaign for Equal Justice to eligible programs. A discussion ensued about the need for the BOG to suggest a direction to establish a smooth allocation process for the endowment funds. Mr. Davis suggested consideration of a policy to outline the formula under which investment income is created for this purpose.
Action: The Access to Justice Committee moved to recommend the joint OSB/OLF/CEJ Endowment Committee develop criteria apportioning 90% of endowment funds to programs eligible for funding through the OSB Legal Services Program, and 10% toward other programs that provide free and low-cost civil legal services to disadvantaged Oregonians. The motion was approved unanimously by the board.
Mr. Williamson commended the excellent work of Ms. Garst and the Lindauer Group.
F. Joint Admission Study Group Report
Mr. Riemer presented the recommendation of the Joint Admission Study Group to adopt a reciprocity rule to permit certain Idaho and Washington lawyers to practice law in Oregon without having to take the Oregon bar examination. Washington already has a reciprocity rule. Therefore Oregon and Idaho need to formally adopt a reciprocity rule to participate. A decision from Idaho should be available in mid-December.
The board had a lengthy discussion about ways to inform the members about the potential for a reciprocity rule and to request their input, including at the upcoming special HOD meeting on January 19, 2001. Mr. Riemer indicated that the PLF had been consulted regarding this matter and felt it did not raise significant coverage issues. Mr. Riemer fielded questions about choice of law rules, full licensing, discipline and other topics.
Action: Mr. Harnden moved, Ms. Burrows seconded, to refer the reciprocity rule to the January 19, 2001 Special House of Delegates Meeting for consideration. The motion was withdrawn.
Action: Mr. Harnden moved, Ms. Burrows seconded, to incorporate a question about the reciprocity proposal in the planned survey to OSB members in December. The results will be reviewed at the January BOG meeting. The motion was approved by the board (14-0-2; absent Davis, Rinehart).
It was agreed by consensus that Mr. Rew, Mr. Hytowitz and Mr. Riemer would meet with representatives of the Board of Bar Examiners and PLF to continue to discuss the implementation of the reciprocity proposal.
G. Executive Director Review Special Committee
1. Executive Session - Executive Director performance review report
2. Adoption of Executive Director evaluation and compensation
Action: The Executive Director Review Special Committee moved to meet with Ms. Garst for her annual performance review, to renew Ms. Garst's contract, and to raise her salary by 10% in 2001. The motion was approved by the board (12-2-2; no Lopez, Tyner; absent Davis, Rinehart).
6. Professional Liability Fund
A. Approval of 2001 PLF Budget
Mr. Nunn discussed highlights of the 2001 PLF Budget which included the following: (1) Significant cost allocation changes between Primary and Excess coverage. (2) The increase in rent expense projected due the PLF's move out of the OSB Center building. (3) A 5% salary pool increase and three new budgeted staff positions. (4) No change to the primary assessment level. (5) OAAP's move to new and more expensive office space. (6) An expansion of continuity credits as part of the Excess Program revenue.
The ensuing discussion was about whether coverage rates should be higher, cost analysis methodology, setting an appropriate retained earnings level, anticipated timing of PLF's move to new office space, and the annual reinsurance meeting with Lloyd's of London.
Action: Mr. Hytowitz moved, Ms. Rinehart seconded, to approve the 2001 PLF Budget. The motion was approved unanimously by the board.
B. Amendments to PLF Policy Manual Chapter 7 - Excess Plan Rates
Mr. Zarov reviewed the PLF Policy Manual Chapter 7 amendments to state the Excess Plan rates for 2001.
Action: Mr. Hytowitz moved, Ms. Rinehart seconded, to amend PLF Policy Manual Chapter 7 - Excess Plan Rates. The motion was approved unanimously by the board.
C. Excess Coverage Plan Exclusion B – Business Entity Exclusion
Mr. Zarov discussed the amendment to the business entity exclusion in the PLF Excess Coverage Plan.
Action: Ms. Rinehart moved, Mr. Hytowitz seconded, to amend Excess Coverage Plan Exclusion B – Business Entity Exclusion. The motion was approved unanimously by the board.
D. BOG/PLF liaison continuity
Mr. Rew reviewed the use of three liaisons each from both the BOG and BOD to attend the other group's board meetings over the past several months. He felt that next year the two boards may want to consider how to continue the process.
Mr. Nunn indicated he welcomed the opportunity to assist as a liaison, but wondered if asking three liaisons to attend each meeting was asking too much. He felt it might be appropriate to take turns and have one liaison attend a meeting rather than all three at once. This item will be placed on a future agenda for further discusion.
7. Consent Agenda
Action: Mr. Harnden moved, Mr. Hytowitz seconded, to approve the following consent agenda items. The motion was approved unanimously by the board.
A. Reading and approval of meeting minutes for September 21-22, 2000 (revised) and October 27, 2000
B. Policy & Governance Committee
1. MCLE Rule regarding late fee
C. Appointments Committee
1. Approval of 2001 committee and board appointments
a. OSB standing committees
b. Disciplinary Board
c. Fee Arbitration Panel
d. State Professional Responsibility Board
e. Bar Counsel
f. Local Professional Responsibility Committees
EXHIBIT, p. 6-21
8. Default Agenda
A. Report of the President
1. General Correspondence
a. Letter from Child Abuse CLE presenter
B. Report of the Executive Director
1. Operations Report
2. Update on OSB History book
3. Articles of interest
a. Indigent Defense - Allegheny County
b. Technology and the Web
c. Reduction in Fees - California State Bar
C. Budget & Finance Committee
1. Section dues increases for 2001
2. Receipt of audit report for fiscal years 1998 and 1999
D. Client Security Fund Committee
1. CSF Claims Report
E. House of Delegates
1. 1996-2000 HOD Meeting attendance trends
2. Summary of 2000 HOD Meeting action
10. Evaluation of Meeting/Agenda for Next Meeting
Staff will send the board a summary of the November retreat discussion and ask each board member to set priorities for the topics raised. During the upcoming year, we will deal with each of the strategic priorities the board identified as well as programs and services the board noted for further discussion.
11. Good of the Order (Non-action comments, information and notice of need for possible future board action)