September 19-22, 2001
Open Session Minutes
The Open Session was called to order by President Ed Harnden on Wednesday, September 19, 2001, at 2:16 p.m. and adjourned at 4:10 p.m., with a work session running from 1:00 p.m. to 2:45 p.m. Present were Ed Harnden, Angel Lopez, Agnes Sowle, Mary McCauley Burrows, John Tyner, Malcolm Scott, Ronald Bryant, William Carter, Bette Worcester, Bruce Anderson, Lisa LeSage, and Charles Williamson. Staff present were Karen Garst, George Riemer, Bob Oleson, Rod Wegener, Susan Grabe and Teresa Bowen. Also present during the Work Session were Joshua Marquis, and Susan Hohbach.
At 9:00 a.m. on Thursday, September 20, 2001, the Open Session of the Board was convened by President Ed Harnden and adjourned at 2:16 p.m. Present were Ed Harnden, Angel Lopez, Gordon Davis, Ronald Bryant, Charles Williamson, Bette Worcester, Mary McCauley Burrows, Agnes Sowle, William Carter, Bruce Anderson, John Tyner, Malcolm Scott, James Brown, Lisa LeSage and arriving at 9:30 a.m. David Hytowitz and at 10:10 a.m. Sarah Rinehart. Staff present were Karen Garst, George Riemer, Bob Oleson, Stella Manabe, Jeff Sapiro, Susan Grabe, Teresa Bowen and Ira Zarov. Also present was Mary Alice Bjork, PLF Liaison to the BOG. Mr. Harnden left the meeting at 12:30 p.m. and after a 15-minute break, Mr. Lopez resumed the meeting as chair at 12:45 p.m. Also present were James Henning, Katherine O’Neil, Linda Clingan, Marilyn Cover, Thomas Brown, and Paul Mortimer.
At 9:00 a.m. on Friday, September 21, 2001, the Open Session of the Board was convened by President-Elect Angel Lopez and adjourned at 9:10 a.m. Present were Angel Lopez, Gordon Davis, Malcolm Scott, Agnes Sowle, Bruce Anderson, Sarah Rinehart, John Tyner, Jim Brown, Mary McCauley Burrows, David Hytowitz, Charles Williamson, William Carter, Lisa LeSage, and Bette Worcester. Staff present were Karen Garst, George Riemer, Bob Oleson, Jeff Sapiro and Teresa Bowen.
Work Session – Wednesday, September 19, 2001
CLE Publications Program Presentation
Lisa Sindlinger, CLE Publications Manager, provided the board with an overview of the bar’s CLE Publications Program. A question and answer period followed her presentation.
District Attorney Keller Arbitration
Sue Hohbach, who represents the district attorneys in Washington County, and Joshua Marquis, who is the president of the Oregon District Attorneys Association, addressed their pending Keller challenge to the HOD's consideration and passage of the 2000 Resolution on Ballot Measure 94.
Joshua Marquis indicated that the petitioners are not interested in a refund of their bar dues, but rather are concerned with what they see as an increasing number of divisive issues being considered by the HOD. They believe that the HOD's consideration of these issues violates the bar's Keller policy. In particular, he believes Ballot Measure 94 itself was very derogatory of prosecutors and that the resolution in support of this ballot violated Keller. Mr. Lopez stated that the bar did produce a neutral program (pro/con) on Ballot Measure 94 subsequent to the passage of the HOD resolution.
Sue Hohbach indicated that the HOD resolution was offensive to prosecutors. She is interested in assuring that the HOD not consider resolutions that violate Keller.
George Riemer, General Counsel to the OSB, discussed problems with the Keller decision itself. There have not been many helpful decisions subsequent to Keller that allow one to draw a bright line between issues that can and cannot be considered under Keller.
The board discussed the issue of the HOD's ability to consider a resolution even in a case where the BOG felt it violated Keller. The board's policy regarding avoiding legislative issues that are not divisive does not apply to the HOD. A suggestion was made to have the HOD adopt a similar policy. A suggestion was also made to alert bar members to raise Keller concerns prior to each HOD meeting. The BOG's Policy & Governance Committee agreed to review BOG 11.800 in light of the concerns raised by Ms. Hohbach and Mr. Marquis.
Wednesday, September 19, 2001
Thursday, September 20, 2001
Friday, September 21, 2001
1. Report of Officers
1. Meeting with Chief Justice Carson
a. Mr. Harnden reviewed the items discussed during the bar’s regularly scheduled meeting with the Chief Justice. Ms. Garst distributed a memo summarizing the topics covered at the meeting for the benefit of the board.
b. The board discussed the Supreme Court’s lack of a stance on the board’s revision of DR 1-102(D). Mr. Lopez will call Justice DeMuniz to obtain the court’s input if possible.
2. Local Bar Visits
Mr. Harnden updated the board on his and staff’s on-going efforts to meet with local bar associations throughout the state. He also indicated that he had recently visited each of Oregon’s three law schools.
3. Report on PLF and OSB Salary Alignments for PLF CEO and OSB Executive Director
Mr. Harnden indicated that he was working with the chair of the PLF Board to ensure that the salaries of the OSB Executive Director and PLF Chief Executive Officer were properly aligned in light of their job duties and responsibilities. Mr. Harnden will report back to the BOG in November with further information.
1. Mr. Lopez reported on the recent work of the Judicial Selection Committee in making recommendations to the Governor regarding highly qualified candidates for a vacancy on the Oregon Supreme Court. He felt the process worked very well. The Governor appointed Thomas Balmer, a Portland lawyer, to fill the vacancy on the Supreme Court.
2. Mr. Lopez also informed the board of his attendance at the Annual Meeting of the American Bar Association in Chicago in August where he participated in the Oregon State Bar’s acceptance of the ABA’s Harrison Tweed Award for its ongoing work in the area of improving Oregonians’ access to justice and in a program for the National Conference of Bar Presidents in which he explained the diversity efforts of the Oregon State Bar and Oregon judicial system.
3. Mr. Lopez invited the board and staff to attend the annual meeting reception of Willamette University Law School at which he was going to be honored as the incoming president of the Oregon State Bar.
C. Report of the Executive Director [Ms. Garst]
1. Update on Joint Meeting of Washington State Bar Association Board of Governors and our Board, October 19, 2001, in Vancouver, Washington
The Board of Governors has been invited to meet with the Washington
State Bar Association Board of Governors on October 19, 2001 in
Vancouver, Washington. Board members were was asked to advise
staff of their availability to attend this meeting.
The board will be attending meetings October 24-27, 2001, with the ABA Law Practice Management Section at Salishan. Board members were reminded to return registration forms for the CLEs, meetings and room reservations to Ms. Bowen as soon as possible.
2. OSB Committees, Sections, Councils, Divisions and Task Forces
The board briefly discussed whether board members should attend Annual Meeting
CLEs without payment of registration fees. The consensus was that board members
could do so unless they desired MCLE credit in which case they would be required to
pay the Annual Meeting registration fee. However, the matter was referred to the
Budget and Finance Committee for further consideration prospectively.
1. Proposed Discipline Rule Prohibiting Referral Fees from Non-lawyers
Mr. Bryant introduced the proposed disciplinary rule change and indicated that a majority of the Legal Ethics Committee opposed it, preferring the previously submitted proposed formal ethics opinion.
Motion: Following a discussion, Mr. Bryant moved and Ms. Burrows seconded that the board approve the proposed formal ethics opinion. The motion failed (1, yes [Bryant]; 13, no; 2, absent [Hytowitz, Rinehart]).
Motion: After further discussion, Mr. Williamson moved and Mr. Bryant seconded to approve the proposed rule with the addition of the phrase 'in exchange for such referral' at the end of the rule. The motion was approved by the board (13, yes; 1, no [Tyner]; 2, absent [Hytowitz, Rinehart]). The proposed rule will be presented at the next available House of Delegates meeting.
B. Affirmative Action
1. Follow-up information from July BOG Work Session
a. Mr. Lopez, Ms. Garst, and Ms. Manabe explained the recent activities of the Affirmative Action Committee and the statistics set forth in the board agenda. Ms. Manabe will continue to collect and tabulate AAP data and will provide the board with additional reports on the effectiveness of program components.
b. The board briefly discussed whether the multi-state bar examination might be biased against minority applicants. Staff will look for available research on this topic.
3. BOG Committees, Special Committees, Task Forces and Study Groups
1. Exemption of MCLE Fee for Video Replays
This item was carried over to the November meeting of the Board of Governors.
2. Modification to Pro Bono/Retired Policy
Ms. Sowle explained the proposed change to BOG Policy 15.700(B) which would allow a lawyer on active pro bono status to engage in volunteer service on the SPRB, Local Professional Responsibility Committees, the Disciplinary Board and as bar counsel in disciplinary cases.
Motion: The Policy and Governance Committee moved to waive the one
meeting notice requirement for changes to the board’s policies. The motion was approved unanimously.
Motion: The Policy and Governance Committee moved to approve the proposed change. The board unanimously approved the proposed change.
1. History of D&O Insurance for Board
a. Mr. Scott reported that his committee would be considering the issue of directors and officers insurance for the state bar. The PLF has acquired D&O Insurance for the PLF (which covers the BOG and state bar for the activities of the PLF). The committee will be examining the coverage obtained by the PLF and will also make inquiry of the PLF’s insurance broker of the possibility of a similar policy being written to cover the activities of the Oregon State Bar.
b. Mr. Scott reported on the request of the groups sponsoring the upcoming Diversity Convocation for the bar to contribute $5,000 to help cover the costs of the event.
Motion: Mr. Williamson moved and Ms. Worcester seconded that the bar contribute up to $5,000 subject to the following conditions: (1) that other funding be sought and registration fees set so as to cover all program costs to the extent possible; and (2) that the convocation commit one hour of its program to diversity training. The motion carried unanimously.
1. Report on OSB Legislative Debriefing Session
a. Mr. Tyner summarized the recent debriefing session held by the Public Affairs Committee and PA staff on the 2001 legislative session. An outline of the recommendations which came out of this debriefing session was distributed to the board. The Public Affairs Committee and staff will use this outline in making preparations for the interim and the 2003 legislative session.
b. Mr. Riemer mentioned that the board may wish to submit comments to the Secretary of State on proposed Initiative Petition No. 107 (Oath of Office for Judges). The consensus of the board was that comments should be submitted to the Secretary of State and board members James Brown and John Tyner agreed to work with Mr. Riemer to submit comments by letter before the deadline of 5:00 p.m., Thursday, September 20, 2001.
D. Public Member Selection Committee [Mr. Davis]
1. BOG Public Member Recommendation
Motion: Mr. Davis reported on the work of the committee and its recommendation that Jonathan P. Hill be appointed by the board as a public member of the Board of Governors for a four year term beginning January 1, 2002. The committee’s motion was approved unanimously by the board.
4. Professional Liability Fund
A. General Update
1. PLF Assessment
Mr. Zarov reported on the recommendation of the PLF Board that the 2002 PLF Assessment be set at $2,200 for 2002.
Motion: After Mr. Zarov’s presentation and following several questions by members of the board, Mr. Hytowitz moved and Mr. Carter seconded, that the board approve the 2002 PLF Assessment in the amount of $2,200. The motion was approved unanimously by the board.
2. 2002 Salary Pool, Preliminary Budget, and Assessment
Mr. Zarov introduced the preliminary PLF budget for 2002. The board will consider the adoption of the PLF’s budget at its November 2001 meeting.
3. June 30, 2001 Actuarial Review of Claim Liabilities
Mr. Zarov briefly reviewed these documents for the board.
4. OSB PLF Financial Statements 6/30/01
These reports were for information purposes only.
5. PLF Update
Mr. Zarov reported on the PLF staff’s successful move to new quarters. An open house will be scheduled for the Board of Governors and staff in the next several months.
5. Appearances/Special Issues
A. Classroom Law Project
1. Annual Report
The board heard an update of activities from the Classroom Law Project which include the We the People Constitutional Competition, the Mock Trial Competition, as well as teacher training and curriculum development. Marilyn Cover, CLP director, and Thomas Brown, CLP board member, made the presentation. Ms. Cover and Mr. Brown urged the board to continue its financial support for the program.
B. HOD Agenda
1. Board Responsibility
Mr. Riemer briefly reviewed board member duties for the House of Delegates meeting.
2. Delegate Resolution No. 1
James Hennings, a sponsor of Delegate Resolution No. 1 on the 2001 HOD Meeting Agenda, appeared to seek the board's support for his resolution. The resolution calls for a comprehensive study of the bar's disciplinary system.
Motion: Following Mr. Hennings’ departure, Mr. Williamson moved and Ms. Sowle seconded to oppose Delegate Resolution 1. This motion was withdrawn and the board decided to present a written statement to the House of Delegates explaining why it could not support Delegate Resolution 1.
Motion: Mr. Williamson moved and Mr. Bryant seconded that when the board adjourned its Thursday, September 20, 2001 meeting it reconvene at 9:00 am on Friday, September 21, 2001 to decide what position it would take on Mr. Hennings’ resolution.
Motion: When the board reconvened at 9:00 a.m. on September 21, 2001,
Mr. Williamson moved and Ms. Worcester seconded, that the board approve the attached memorandum for distribution to the House of Delegates on Saturday, September 22, 2001. The memorandum indicated that the board did not support Mr. Hennings’ resolution and the reasons why. The motion was approved unanimously by the board.
3. Potential Gatti Amendment
The board briefly discussed the status of proposed amendments to the board’s resolution to amend DR 1-102 on the House of Delegates agenda. After a discussion of recent developments, the board agreed, by consensus, to proceed with its resolution before the House of Delegates.
C. Joint Venture with CEJ on Endowment
1. Presentation of Collins Report
Paul Mortimer from the Collins Group and Linda Clingan from the Campaign for Equal Justice discussed the feasibility study to create an endowment for low-income legal services. The report concluded that those bar members interviewed indicated a strong likelihood of success for an endowment campaign. The Board of Governors, the Oregon Law Foundation, and the CEJ have formed a joint venture to establish an endowment.
D. Legal Heritage Task Force
1. Status of History Book
Katherine O’Neil provided the board with a brief update of the status of the preparation of bar’s history book, 'Serving Justice.'
2. Report on Fund Raising Activities
Ms. O'Neil also updated the board on the task force's effort to raise funds for the OSB history book. The group is working with bar staff to market the book and raise funds for its publication. Over $6,000 has been raised to date.
Mr. Anderson asked about the marketing plan and budget that the Board of Governors had previously been promised. Ms. Garst indicated that the board should have been provided with that information and she would make sure the board received this information in the November agenda packet.
F. Request for Amicus Brief by Oregon State Bar in Delong v Yu Enterprises, Inc.
Mr. Riemer explained the request and the underlying legal issues. The board agreed, by consensus, that the parties were fully capable of thoroughly briefing and arguing the legal issues in the case and that it would be inprovident to ask the court to consider the constitutionality of the absolute immunity provided to people who complain to the bar about lawyers when that issue was not directly before the Supreme Court in this case.
6. Consent Agenda
Motion: Ms. LeSage moved and Mr. Williamson seconded to approve the Consent Agenda with the proviso that the CSF claim payment of $8,000 for Mr. Compton be paid directly to his stepmother, Maxine Compton, pursuant to his request.
7. Good of the Order (Non-action comments, information and notice of need for possible future board action)
Mr. Riemer distributed a letter the board received from the Workers Compensation Board requesting input on proposed changes to its rules regarding the award of attorney’s fees in a certain category of cases. Mr. Hytowitz and Mr. Riemer agreed to draft a response to the Workers Compensation Board to be reviewed by the BOG before it is sent.