Oregon State Bar Bulletin FEBRUARY/MARCH 2002

Letters to the Editor

Clarification
In Sylvia Stevens' article, 'Final Reward' (OSB Bulletin, December 2001), she cited Bischoff v. Bischoff & Strooband, P.C., 121 Or. App. 529 (1993), as one authority regarding pro-se litigants and attorney fees. Actually, the complete cite is Jerome F. Bischoff v. Bischoff & Strooband, P.C. and SAIF Corporation. Jerry Bischoff, representing himself, sought attorney fees and a penalty for SAIF's unreasonable denial of his claim. Although he prevailed on the penalty entitlement, the court, in a first impression case, affirmed the board's finding that pro-se attorneys are not entitled to an insurer-paid fee for overcoming a denial.

The battle for attorney fees was between Jerry Bischoff and SAIF, and although Bischoff & Strooband, P.C., was a named respondent in the case, we were not opposed to Jerry Bischoff's claim for fees against the insurer.
Mike Strooband
Eugene

Increased Respect
The article 'Bridging the Gap' (OSB Bulletin, December 2001) highlighted one meaningful way lawyers contribute to Oregon's neediest citizens: pro bono work. Though free legal services are necessary for a healthy judicial system, it wasn't until I changed professions that I realized the extent to which lawyers contribute to society in non-legal capacities.

As an elected official, I've observed lawyer-volunteers playing a critical role in every facet of city life. Portland's citizen commissions - from the Planning Commission to the Housing and Community Development Commission - have been enriched by thoughtful legal professionals helping guide city policy.

As the commissioner in charge of Portland's Bureau of Parks and Recreation, I have had the privilege of working directly with lawyers as well. Jim Zehren, who has given countless hours for the betterment of our local and regional park systems, has agreed to serve on Portland's newly created Parks Board, which advises the City Council on parks policy and budget issues. Supreme Court Justice Tom Balmer was instrumental in helping me create the Portland Parks Foundation, a philanthropic organization raising funds for recreation scholarships for low-income children and acquiring new land for parks.

Outside of city business, lawyers fill the ranks of non-profit boards, from Boys and Girls Clubs to the Friends of Trees. The contributions lawyers make to our state are irreplaceable, and though I am no longer a practicing attorney, my respect for the profession has only increased.
Jim Francesconi
City Commissioner
Portland

Still More to Do
This letter is in response to Fred Ruby's letter to the editor (OSB Bulletin December 2001). Mr. Ruby expresses his frustration with the new 'diversity' CLE requirement. He notes that law schools have already provided us with the education we need on the 'evils and illegality of discrimination' through the requirement of a constitutional law course.

I recall in my constitutional law course that one simple proposed amendment to the United States Constitution caused quite a national fuss and failed to seek the requisite support for passage. The proposed amendment read as follows: 'Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.'

Until our society is able to accept that a basic concept such as equality is uncontroversial, there is still work to be done - even here in Oregon.
Jennifer K. DeWald
Portland

Pursue Diversity
In his 17-year legal career, attorney Fred Ruby (Letters, OSB Bulletin, December 2001) has apparently never been on the receiving end of discrimination. How fortunate Mr. Ruby is to have not been told that he prevailed on a dispositive motion because he only needed to bat his eyelashes at the judge to get any result he wanted. Seventeen of recognition for ability - a novel concept indeed! - is worth savoring.

Disparate treatment of women and minorities in the law is undeniable even today. Instead of 'protesting the OSB's adoption of mandatory three-hour 'diversity' CLE,' Mr. Ruby might benefit from a reality check. Let us be plain: It is still a man's world, more specifically, a white man's world.

Despite over 40 years tackling inequality in the legal community, gender and racial disparity enormously distorts the make-up of the general population: 90 percent of the legal profession is white, and of that, more than 70 percent is white male. This is a perverse reflection of what America is and will become in the next 50 years.

Mr. Ruby's belief that diversity CLE is unnecessary because we learned the 'evils of discrimination' during Constitutional Law courses is misguided. Constitutional laws are only as good as the judiciary interpreting them. Recently, the U.S. Supreme Court's five-member majority has restricted civil rights for women and minorities. In January 2000, the Court undercut the Justice Department's authority under the Voting Rights Act, blocking white bureaucrats from adopting electoral plans unfair to African Americans. Reno v. Bossier Parish School Board, 528 U.S. 320. In May 2000, the section of the Violence Against Women Act allowing federal suits was removed (U.S. v. Morrison, 529 U.S. 598), because 'protecting civil rights does not extend to 'purely private' acts,' a decision undoubtedly dooming prospects for a national Hate Crimes Act.
We are players with diverse instruments in a legal orchestra with similar goals pursuing justice and defending liberty. Remaining uninformed promotes irrational bias. Our profession has no room for this. We must pursue diversity because we are attorneys sworn to uphold the U.S. Constitution. Diversity training through CLE proactively brings us closer to that goal.
Diane L. Abraham
Novato, Calif.

Special Treatment Indeed
According to Clatsop County District Attorney Joshua Marquis (Letters, OSB Bulletin, December 2001), Medford attorney William P. Haberlach wrongly claimed that the state's district attorneys sought 'special treatment' in seeking an overturning of the Gatti decision. Actually, special treatment is exactly what the district attorneys sought, and got.

In part, the Oregon Supreme Court based Gatti on ORS 9.527(4). That statute authorizes the court to 'disbar, suspend or reprimand a member of the bar' who is found 'guilty of willful deceit or misconduct in the legal profession[.]' Working with other interested groups, the Oregon District Attorneys Association persuaded the 2001 Legislature to pass House Bill 3857, overturning Gatti's statutory basis. See Minutes, House Committee on Judiciary, Subcommittee on Criminal Law, May 17, 2001.

Specifically, HB 3857 exempts the following attorneys from ORS 9.527(4): 'the Attorney General, the Deputy Attorney General, assistant attorneys general, district attorneys, deputy district attorneys and any other attorney employed by, or working on behalf of, a public body, as defined in ORS 192.410, or the federal government.' HB 3857 would free this limited class of attorneys to use 'willful deceit or misconduct' in the practice of law.

Missing from the bill's exclusive list are non-government attorneys, including virtually all criminal-defense attorneys. Although some legislators voiced concerns 'about the 'double standard' of HB 3857 to be enforced for government enforcement and investigative actions, but not for any other investigative purposes,' Minutes, May 17, 2001 (summarizing comments of Rep. Lane Shetterly, R-Dallas), in the end the legislature passed the bill.

The bottom line is that the prosecution bar sought and got a legislative exemption from Gatti benefiting prosecutors to the exclusion of criminal-defense lawyers - and virtually all other lawyers, for that matter. That's 'special treatment,' just like Haberlach said.
Jesse Wm. Barton
Salem

Refiguring Statistics
The Briefs column (OSB Bulletin, January 2002) reported research from the National Association of Law Placement regarding increases in the share of large law firm partnerships held by women and minorities. These were described as 'modest' increases, and the article title bemoaned: 'Major Law Firms Still Mostly White Men.' However, running the numbers, the share of partnerships held by 'attorneys of color' increased by 39 percent in the past eight years, and the share held by women increased by 29 percent in the same period. It seems that statistics can tell almost any story one wants them to.
Bennet K. Langlotz
Portland


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