Oregon State Bar Bulletin ó AUGUST/SEPTEMBER 2002

Letters

Preying on the Poor
I am pleased that Richard Braun has directed the general barís attention to the legal funding industry ('Settle Now, Pay Later,' May 2002).

The Oregon Trial Lawyers Association has led the way in condemning the infiltration of personal injury 'lenders' in Oregon. Our members were warned in our June 2001 SideBar ('Preying on the Poor') that such loans were fraught with ethical peril and should be avoided like the plague. We are opposed personal injury lenders not only because of the enormous ethical problems for lawyers whose clients participate in such loans, but, more importantly, because of the huge abuse to consumers that necessarily occurs from predatory lenders.

State Rep. Charlie Ringo of Beaverton has also been a leader in this area. He prepared a bill in the 2001 session to outlaw personal injury loans in Oregon. Unfortunately the bill did not move forward in large part due to the substantial opposition it would have received from the same lobby that prevented reform of the 'car-title' and 'pay-day' loan business.

When the legislature next convenes, perhaps the bar at large will now join OTLA in seeking to protect Oregon consumers from a loan business that is as bad for lawyers as it is dangerous to personal injury claimants.

Richard S. Yugler
President, Oregon Trial Lawyers Association

Just Punishment?

To call the Death Penalty a 'just punishment' when it takes at least a decade for it to be imposed and requires 'two or even three times' to get it right (maybe) is an insult to the intelligence of any rational reader ('A Just Punishment,' May 2002). One wonders how the family and friends of the victim feel about having to endure the trial process multiple times and having to wonder when, if ever, a sentence that will stand up will finally be imposed on the perpetrator of a 'horrific' murder.

The hallmarks of justice are swiftness and surety. A system that cannot deliver these attributes is 'fatally flawed.' A system that is wrong 68 percent of the time indicates an inability to handle the challenges of imposing the most extreme penalty.

Tim Armbruster
Tucson, Ariz.

Capitol Folklore

The article by Cliff Collins on the remodeling of the Supreme Court Library, now the State of Oregon Law Library and particularly the reference to the capitol fire in 1935, produced some pangs of nostalgia ('Touch Up for an Aging Beauty,' May 2002).

When I was a student at Willamette University (1933-37), I worked part-time at the State Library, which then occupied most of the first floor, the basement and the attic of the Oregon Supreme Court building. The Supreme Court Library was on the second floor, and the courtroom and justicesí chambers occupied the third floor. My duties were shelving books, wrapping packages and general errand- boy. It was beyond my wildest dreams that some day I would serve in that building as an associate justice.

The supreme court building was connected to the capitol building by an underground tunnel for heat, electricity, etc., and when the capitol building burned in 1935, the water that was poured on, in a vain attempt to extinguish the fire, flowed into the basement of the supreme court building. There it soaked and ruined many of the state library books that were shelved in the basement. One of my tasks was to retrieve the damaged books and try to dry them out or dispose of the ones that could not be salvaged.The capitol fire was a major event in many ways, besides the loss of an historic structure. One of our fellow students, who was working as a volunteer fireman in exchange for a place to sleep in a fire station, was killed when struck by a falling cornice. For days the streets of Salem were littered with charred paper that had been state documents until scattered by fire-driven winds. The buildingís dome was made of copper, and some of it was recovered and peddled around town as souvenir ash trays, etc. Some of the buildingís columns were salvaged and set up as a pseudo-Greek temple on the campus across the street. And of course it provided folklore material for a long time.

Randall B. Kester
Portland

Diversity Requirement, Revisited

Not having been able to attend the actual presentation on April 11, I decided to satisfy the new 'diversity' requirement early in my reporting period as did Diane Gruber (Letters, June 2002). I did so by requesting the tapes of the presentation and listening to them at home.

As I listened I had much the same reaction as attorney Gruber and other attendees appear to have had. I, too, felt that the tape was a waste of time, but I reasoned that this is something that weíre probably just going to have to put up with. Perhaps if enough future tape listeners have the same reaction and make their feelings known, someone at 'headquarters' will do something about it.

Arthur L. Whinston
Portland

I attended with about 20 Sole and Small Firm (SSFP) Section members the free SSFP Section-sponsored MCLE presentation at Willamette University on June 15, presented by OSB President Angel Lopez. The presentation was excellent and generated interesting discussions about class issues, demographic trends in Oregon and the nation, personal reflections on client and court misunderstandings relating to different perspectives/beliefs/customs, and whether the diversity requirement should be mandated as an MCLE by the Board of Govenors, OSB or supreme court.

In the June Bulletin (Letters) and on the list-serve of the SSFP Section, colleagues have suggested that the new so-called diversity requirement exceeds the scope of the OSBís mission. I disagree.

The law is supposed to be a noble profession, one of its primary goals being to protect individuals in society from persons who would abuse power for their own purposes (e.g., Richard Nixon or any common purse snatcher). William Shakespeare recognized this goal in his often misquoted words to the effect that 'the first thing we do is kill all the lawyers.' Shakespeare was talking of course about how to destroy a society, how to overthrow its institutions. Shakespeare understood that the law and those who practice it serve the role of promoting fairness, validating institutions and protecting against abuse of power. Lawyers are supposed to uphold what is best about a society.

CLE is designed to allow us to continue our 'legal education' generally and to specifically 'improve the competence and skills of Oregon lawyers.' Legal education and competency include professionalism. A host of rules in the Code of Professional Responsibility already regulate how we can act. One way to improve lawyer competence with clients, judges and juries is to help us understand 'racial and ethnic issues, gender fairness, disability issues and access to justice.' MCLE Rule 3.3. I suggest that class distinction be added to the list. Professionalism and competence therefore include treating others respectfully, honestly and compassionately. I believe the new diversity requirement can help us in those areas.

As Angel Lopez pointed out during his presentation, demographers project that within 50 years, the current European majority in the USA will be the minority. Other racial groups from Asia, Africa and South/Central America will increase their numbers to majority status. There also will be far more disabled people as we live longer and as the number of humans increases.

Lopez suggested that if these trends persist, the law and its practitioners will lose legitimacy unless it and they become sensitive to larger numbers of diverse people. If nothing else, personal self-interest suggests that we should become more aware of groups outside ourselves.

As lawyers, we certainly can improve our competence by understanding larger than ourself issues that affect other people. I do not see how allowing us to open our eyes to the needs, beliefs, customs, thought processes and cultural biases of others, can possibly hurt us in pursuing the legal profession. It might even help us.

Ed Gerdes
Immediate past chair
OSB Sole and Small Firm Practice Section

I just read two letters in the June issue, both attacking the barís CLE cultural diversity requirement. One writer employed primarily indignation, the other sarcasm. However, both writers obviously feel that they themselves possess no racial or cultural insensitivities worth mentioning, and thus have nothing to learn from any trainings on the subject.

Whether or not the bar should be in the business of promoting cultural sensitivity through mandates is a legitimate question. Apart from that, though, anybody raised in America who claims to be free of prejudice is either a liar, a fool or a saint. If these two writersí attitudes speak for any significant portion of Oregon lawyers, then the bar is right on at least one thing: A serious problem exists among its members.

Timothy P. Baxter
Eugene


I read with interest the letters to the editor in the June and July issues of the Bulletin criticizing the 'cultural competency' seminar pertaining to the CLE diversity requirement.

I would ask the critics to consider the following:

1. The negotiation and execution of modern contracts with companies from Pacific-Rim countries, including Mexico (remember APEC and NAFTA?), require a knowledge not only of the language and legal customs of the country, but also of the negotiation strategies employed by individuals from these different cultures (witness the number of attorneys now being hired who are fluent in several languages);

2. An increasing number of my colleagues are learning Spanish due to the influx of Hispanic people into Oregon (approximately 10 percent of Oregonís population);

3. A great number of foreign immigrants who have settled in Oregon experience extreme difficulties navigating the 'complex waters' of our criminal and civil law system, and practitioners might need to understand the cultural frustrations experienced by these clients.

If the curriculum embraces the above issues, then it is a forward-looking program to assist Oregon lawyers to better serve their clients and to better understand and appreciate ethnic and cultural diversities. Only then may we, as a profession operating within a global economy, help to sustain the competitive advantage enjoyed by our state and nation with other economies and societies.

My advice to the naysayers: 'Keep the criticism constructive and stop the whining.'

Philip F. Schuster IIPortland

Diane Abrahamís recent editorial in the Bulletin provides a good starting point for further discussion of diversity training for OSB members (Letters, June 2002).

Her thesis begins with two stated major premises: the legal profession is an important part of our society, and lawyers in the U.S. are statistically most likely to be white males, who are likely to be biased against all others. An important implication is that this male-dominated profession, currently flawed, is worth preserving. Another implication is that the profession will be made well, and justice served, by changing the makeup of its membership so that it is an exact reflection of the overall demographic composition of the United States.

The reasoning which appears to underlie the latter implication is that those who currently are underrepresented will gain in social and economic power as a result of grater inclusion in the legal profession, and that their views thus will be given more weight. This reasoning is likely valid. Implicit in this desirable shift in bar membership is a shift in political power.

I suggest that it is primarily this political aspect of diversity training which is causing so much discomfort among OSB members. As pointed out by James Vick in a recent letter to the Bulletin (July 2002), mandatory political training is an unprecedented departure from prior CLE subjects. The originators of this departure have not acknowledged its political nature.

We are troubled by the thought of a subject so broad that courses may plausibly involve almost any topic.

And it is difficult not to be offended by the sudden presumption that we are not culturally competent until we have received formal training.

I am sure that many of us share Ms. Abrahamís ideals. I am not sure that those who do not should be compelled to be trained in them. Persuasion is likely to have a better impact than coercion.

Itís wonderful that the members of the OSB care enough about this issue to have such a lively debate. Itís a shame that it is taking place after the fact.

Charles D. Bates, Portland

A wise person once said that democracy begins in dialogue; so too does the achievement of diversity. From dialogue flows the mutual respect and understanding our society and profession sorely needs. Therefore, I am encouraged by the discussion about diversity in the last Bulletin.

I strongly supported the new MCLE diversity requirement during my recent term on the Board of Governors. I continue to believe that we owe it to the public we serve to make the modest effort the rule requires. I am convinced that we will become a better profession if we do so.

I do want to address the charge that the new MCLE requirement reflects a politically partisan viewpoint. (See, letter of James Vick, July 2002.) This charge implies that the Board of Governors (the body recommending the rule change) and the Oregon Supreme Court (the body approving it) acted in a politically partisan manner by passing the rule. This contention of political partisanship is untenable. I was present when both bodies thoroughly debated the proposed rule change. The rule change was voted in because the Board of Governors and Oregon Supreme Court properly exercised their discretion and leadership. This rule change is not about politics Ė it is about professional responsibility.

As a judge, I welcome diverse members of the bar to our profession. I also appreciate how diversity has enriched my life, professionally and otherwise. Let us continue to improve the quality of our profession by embracing diversity.

Richard C. BaldwinMultnomah County Circuit Court

Editorís note: And this, dear readers, is the end of this thread of letters on this subject. Thank you for your generous feedback. Please direct future correspondence on this topic to the OSB Board of Governors, Attention: Diversity Requirement, 5200 S.W. Meadows Road, Lake Oswego, Ore. 97035.

Comments Inappropriate
In 1999 a bar disciplinary panel imposed a six-month suspension as a sanction on a highly respected Portland lawyer after finding he had made false statements while under oath in a deposition. In June, a divided Oregon Supreme Court increased the suspension to two years. One justice dissented, stating that the sanction should have remained at six months.

The next day, the Oregonian article describing the supreme courtís action in lengthening the sanction contained the following quotation from the current bar president:

Angel Lopez, also a Portland attorney and president of the Oregon State Bar, applauded the Supreme Courtís decision. [The lawyer who was sanctioned] 'is a high-profile attorney with a long history of fair dealing,' Lopez said. 'But lawyers who are dishonest while under oath will not be tolerated and there will be consequences.'

I and many other lawyers believe it was entirely inappropriate for the bar president (or any other bar official or employee) to make public comments about what sanction, if any, to impose in a particular discipline case ó either for or against the interests of a particular lawyer. First of all, the Board of Governors has not been involved in specific discipline cases for about twenty years; that responsibility now lies with the State Professional Responsibility Board. Second, in approving the stronger sanction imposed by a supreme court majority, the bar president was showing disrespect to the original trial panel that took the time as volunteers to hear all the evidence and to reach the panelís original sanction decision. Third, no bar official should purport to speak for all lawyers as to the results of any particular discipline case. Will future bar presidents now be giving box scores on other cases? ('Iím pleased she wasnít sanctioned.' 'He should have been disbarred.' 'The sanction seems just about right to me.') This makes the bar look highly politicized and as if it is pandering to the media. Finally, 'applauding' the results was especially inappropriate in this case because the supreme court itself was divided on the appropriate sanction, with one justice writing a forceful dissent arguing for a lesser suspension of six months.

I donít know if the lawyer in this case deserved a six-month suspension, a two-month suspension, or some other result. I do know that no Oregon lawyer who is sanctioned deserves to have his or her nose rubbed in publicly it by a bar official (especially by one who had nothing to do with the discipline process that imposed the sanction) ó thatís just plain wrong.

All bar officials should limit their comments to the media on discipline matters to a general description of the bar disciplinary process and a statement of facts in a specific case that are subject to disclosure under the Public Records Law. Any media comments containing personal opinions about the case will necessarily be seen as a statement of position on behalf of the bar as an organization ó something that is inappropriate. If a particular bar official feels a burning need to make media comments concerning a specific discipline case (based on the officialís First Amendment rights or otherwise), the bar official should first resign his or her bar position so no one will erroneously believe the comment is offered on behalf of the bar itself.

If bar officials canít be relied upon to use good judgment in matters like this, a specific rule should be enacted by the House of Delegates this October prohibiting future bar presidents, Board of Governors members and bar staff from offering their personal opinions in media comments concerning the sanctions or other results of specific discipline cases.

Kirk R. HallPortland

OSB President Angel Lopez responds:
I thank Mr. Hall for his letter, although I do not agree with his analysis. Two years ago my predecessors, Ed Harnden and Larry Rew, made a public statement to the press about the asset acquisition strategy tied to this matter. I think they were right in doing so. As the bar president, I am looked to as spokesperson of the bar. In that capacity, I see nothing wrong with stating the position that our professional disciplinary system will not allow bar members to misstate material matters under oath, which was the substance of my comments. I could argue with the use of the word 'applauded,' which was not a direct quote. However, the bottom line is that the OSB has always maintained an open relationship with the press. That accessibility has been recognized by Oregonís media and is an important component of serving the broad interests of the bar.


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