In my years as a member of the Oregon State Bar, I’ve paid a lot of money for the privilege of practicing law in this state — mandatory PLF fees, bar dues, MCLE courses — and I’ve never complained, until now.
I’m writing because I was late in fulfilling an MCLE requirement. It was my fault; I thought I had satisfied my child abuse reporting requirement, and I hadn’t. When the error was pointed out to me, I paid my money, listened to the tape and fulfilled my requirement, but I was past the reporting deadline.
Imagine my surprise, though, when two weeks ago I got a certified letter from the bar stating that my oversight would cost me $200. Look, I made an error, and I’ll take responsibility. But whatever punishment I get should have some reasonable relationship to the error I committed. This doesn’t. It’s ridiculous. Of course, I paid; if I don’t, I’ll be suspended. So the OSB has $200 more that will go to pay for God knows what. And I’m out $200 that I would rather give to the Campaign for Equal Justice. Well, not this year, at least.
I’m sorry to take up space in this publication, but times are tough. Budgets are being slashed in unprecedented ways. Anyone who works in an area that relies on public funding is aware of how dire the crisis is. I have colleagues who probably will have to relocate due to the loss of funding for indigent defense, compounded with the thousands of dollars in PLF dues, bar fees and MCLE costs that are required to practice in this state.
Times are tough for a lot of people, but I’m not aware of any belt-tightening at the OSB. Maybe I’m wrong — perhaps there have been pay freezes, layoffs, cutbacks, etc, just like in the state and federal government, just like in most areas of the private sector, but if so it isn’t reflected in my mandatory fees.
In a time when many attorneys are suffering due to the state of the economy, the bar is still taking in as much money as ever — hey, they even squeezed $200 extra out of me this month — a ridiculous amount of money for the oversight I committed. But if I don’t pay I can’t practice law. Some would call that extortion. But hey, it’s nice work if you can get it.
Attorney discipline cases make painful reading, in part because each case embarks at some point upon a speculation as to how the lawyer’s violation might have caused harm. '[A]n injury need not be actual, but only potential, in order to support the imposition of a sanction,' said the supreme court in In re Davenport, 334 Or 298, 319 (2002), quoting itself from 10 years before.
Once the speculation begins, the reader knows how it will end. Every violation, like every honest and lawful action, can be imagined in some situation to produce an injury. The Oregon Supreme Court applies a vacuous standard to lawyers who can only lose.
Two recent court opinions in other areas of law have disavowed vacuous standards. In Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 173 (2003), the court reconsidered the we-can’t-tell rule established in Whinston v. Kaiser Foundation Hospital, 309 Or 350 (1990). It said,
'Under defendant’s standard, if there were any possibility that the error at issue affected the outcome of the case, then the court must order a new trial. Because it is almost always possible that an error at trial affected the outcome, defendant’s proposed standard would lead to retrial of most, if not all, cases in which there was trial court error in submitting claims to the jury, among other possible trial errors.' (emphasis in the original)
Two days earlier the Court of Appeals had issued an opinion clarifying the standard for post-conviction relief. Pre-existing case law had said that failures of trial counsel can never reach constitutional magnitude unless they have at least a ‘tendency’ to affect the result. The trial judge noted that '[n]early everything that any trial counsel does or fails to do could have a ‘tendency’ to affect the verdict.' Agreeing with that observation, the Court of Appeals concluded that only tendencies of some consequence mattered. Harris v. Morrow, 186 OrApp 29, 35-38 (2003).
I call upon the disciplinary arm of the bar to disavow the vacuous standard of potential harm. You can’t stop the supreme court from using the standard, but you don’t have to urge it to do wrong.
Craig P. Colby
Note: The author has been involved with this issue since 1999, and represented Staudinger and Rogers before the Oregon Supreme Court. The issue is pending in her cases in several counties currently.