Oregon State Bar Bulletin — JANUARY 2003

Letters

Who’s Satisfied?
Attorneys in Portland are the most satisfied with diversity at their law firms, according to a recent survey of U.S. attorneys and reported in a recent article in The Business Journal. The study was conducted by Vault Inc., a research firm that publishes information on career issues. Portland attorneys scored the highest in all the country when asked about 'satisfaction with diversity' in their firms. Participating local firms include Davis Wright Tremaine, Miller Nash, Perkins Coie, Preston Gates & Ellis and Stoel Rives.

OMLA, however, is not yet satisfied with diversity in the Oregon legal community. We encourage you to consider the following information before concluding that Oregon’s diversity issues are a thing of the past. First of all, consider the study. Without more information, it is difficult to get the full story to this report.

The article reports that the 'Satisfaction with Diversity' category is 'based on lawyer responses to questions about the acceptance of minorities, women and gay/lesbians/bisexuals at law firms.' How and what questions are asked may produce a skewed study. For example, questions about general firm policies about diversity issues (i.e., questions like 'Is it the policy of your firm to accept racial and ethnic diversity?') may produce very different results than questions about individual lawyers’ perspectives (i.e., questions like 'Do your minority attorneys feel comfortable in your firm?').

Issues of mentorship and retention are different than issues of general diversity satisfaction. Without knowing more about what questions were asked and how they were asked, it is difficult to understand the study’s result.

Also, who they are surveying may be important. Or is it? Did they include the views of any racial or ethnic minorities? Would this change the result? Sadly, even assuming that every racial and ethnic minority in Portland’s large firms was surveyed, and assuming every minority was dissatisfied with diversity in their firms, it probably would not be enough to change the result.

OMLA’s dissatisfaction with diversity comes from the cold numbers themselves. The numbers show that the Oregon legal community is not yet diverse. Approximately 4 percent of the Oregon State Bar is comprised of racial or ethnic minorities. Between February 1998 to February 2000, the partners in Portland’s 12 largest firms were 83.5 percent male and 98.3 percent white. (Data collected from NALP Legal Directory 2000.)

Oregon’s commitment to changing the numbers can be seen in recent efforts such as the Convocation on Equality and the formation of the Diversity Section. However, although this study suggests that Portland attorneys have a higher level of satisfaction with diversity in the legal community than their counterparts in other cities, Portland has a long way to go before the amount of diversity matches its level of satisfaction.

Liani J. H. Reeves
Co-chair,
Oregon Minority Lawyers Association

Conscripting Lawyers
I was delighted to see your article on conscription (Bar Counsel, December 2002, by George Riemer), as I have had that conversation many times with colleagues. But a more critical issue looms larger than ever, especially in the current budget crunch, and that is reasonable compensation for indigent defense attorneys.

If the rest of the bar knew what the state pays experienced criminal lawyers to defend our freedom and that of our children, I think they would be ashamed. The next time you are at a bar function, ask a colleague what an attorney practicing in Oregon for over 20 years should be charging as an hourly rate. I can guarantee you that not one person will say, 'Oh, $40 an hour seems reasonable.' Incidentally the federal government pays $90 an hour for exactly the same work. There hasn’t been a rate adjustment in this state since 1991, when the legislature authorized and funded the $40 rate (up from $30, which had been in effect since 1983).

Ken Walker
Portland

• • • • •

I read with some interest your recent article regarding appointment of counsel in criminal cases should the state run out of money. Since I practiced at a time when judges did conscript lawyers to take court appointments, I have a slightly different perspective on the issue than reflected in your article, although I do think all of the issues raised in your article are valid.

My experience was that there is no way to balance the fairness of such a plan to both defendants and lawyers. If we are going to truly conscript lawyers to do work for a minimal or no fee, then in order to be fair to the lawyers, that responsibility should be spread uniformly over the whole of the bar and not only to those lawyers who happen to include criminal defense as a part of their practice.

On the other hand, if we are going to be fair to defendants, you need to allocate this work to lawyers who at least have some familiarity with the criminal justice system and the practice of criminal law, and have kept reasonably current on recent decisions.

I don’t believe we will ever accomplish both goals. It would surprise me to see one of the senior partners in the large business firms, for example, take responsibility for a complex criminal case. Certainly to be even-handed with the lawyers in allocating this work, if it were to be done, we would need to make it a universal requirement. Imagine a tax lawyer or patent lawyer undertaking a Measure 11 rape case.

The big problem with that solution is that just as those of us who don’t practice corporate re-organizations wouldn’t choose to do one on an individual basis, lawyers who don’t practice criminal law should not choose to do one on an individual basis. That would lead to malpractice and post-conviction relief problems that ultimately would cost the state money to defend and retry cases where defendants did not receive effective assistance of counsel.

The fact of the matter is that in order to be fair to both attorneys who do court appointed work (which I have not done for many, many years) and to defendants who may qualify for and utilize the services of a court appointed lawyer, the state must provide compensation for these attorneys so that the attorneys who are competent to do the work are paid for their valuable services. Whether the tax measures pass the taxpayers or not, the fact of the matter is that this is a constitutionally mandated service required of the state to provide. Those services must be funded first — not second, and not third. Rather than trying to figure out how we pay for this service, this and other mandated programs should be provided for first, after which a determination be made as to how and what remaining services can be funded.

I certainly don’t miss the days when those of us who practiced criminal law sat in arraignments and slouched low in our seats so that the judge would not pick us out to handle a court appointment as we sat in the courtroom waiting for our own client to appear. In any event, I did appreciate your article and thought you might like the perspective of someone who actually practiced at a time when lawyers were required to take court appointments in this state.

Donald D. Diment Jr.
Eugene

• • • • •

I agree with George Riemer in his recent column that it is essential that the Oregon State Bar do whatever it can to have the legislature provide for continued adequate funding of indigent criminal defense. I am not too worried about being conscripted. I was drafted once before, during the Vietnam conflict, and the three years that I spent in the Marine Corps taught me more than the three years that I spent in law school. What I am concerned about would be the adequacy of conscripted defense and how it would be implemented.

I am a civil trial lawyer, trying cases in state and federal courts. I have not practiced criminal law in decades. In fact, I have not even read a single criminal law opinion in the advance sheets in decades. Criminal law, with both statutory and constitutional overlays, seems to be at least as complex as what I do. I frankly do not think that I could provide a competent defense to someone accused of crime.

Next, I have concerns about how the burden of conscription would be spread. It would be very wrong if this burden was shouldered only by junior members of the bar, or if certain bar members (by way of example, real estate transactional lawyers) did not have to share in the burden. Similarly, prosecutors and judges should share in the burden of conscription, and that could be done by trying these cases, albeit awkwardly, at night or on Saturdays.

Again, I agree with Mr. Riemer that 'forewarned is forearmed,' and that the bar, individually and institutionally, needs to make it a top priority to insure that the legislature funds what is undoubtedly and unpopular, yet constitutionally mandated, program.

David Jensen
Eugene

• • • • •

I was surprised that George Reimer’s column did not include any mention of the Oregon Constitution’s 'takings' clause, Article I §18. It prohibits the taking of 'property' without just compensation, but Oregon’s right goes much further: '…nor shall the particular services of any man be demanded.' The latter sentence prevents the legislature or the judiciary from compelling Oregon attorneys to provide legal services to indigent defendants without 'just compensation.' According to Carey, The Oregon Constitution (1926), the provision was based on Article I §21 of the Indiana Constitution of 1851. Since neither Indiana nor Oregon permitted slavery after statehood, the 'services' requiring compensation must refer to demands for the direct personal services of a free citizen. An order by the government that an attorney provide legal services without compensation, would directly violate §18. This fact might have little influence on most of the present legislature, which is likely to find the political appeal of lawyer-bashing much more palatable than raising taxes and paying for the services the state needs, and hasn’t shown an interest in the constitution or other restraint lately. But it will make a difference to a new governor who is a lawyer and former supreme court justice; and certainly to the judges who would have to enforce any conscription of attorney labor. Mr. Reimer’s piece would have been much less alarming if he had acknowledged Oregon’s constitution as the dispositive authority as opposed to judicial decisions from other states.

David C. Force
Eugene

George Riemer responds: Mr. Force raises an excellent point that Article 1, Section 18 of the Oregon Constitution explicitly prohibits the taking of the 'particular services of any man' by the state without just compensation. Of course, this constitutional provision is not self-executing such that it automatically prevents the adoption of a rule or law that imposes duties on lawyers to provide legal services without compensation or at levels that would not be considered 'just.' My article didn’t mention ORS 9.460(4) either. That statute provides that an attorney shall '[n]ever reject, for any personal consideration, the cause of the defenseless or the oppressed.' Exactly what obligations this statute imposes on Oregon lawyers in this context is not known either. The goal of my article was to get the general bar thinking about the legal and practical ramifications of 'quick fixes' to the impending indigent defense funding crisis. Mr. Force’s input is very helpful in that regard. I hope we can come up with a funding solution that doesn’t involve a 'takings' question.

Defending CEJ
In the December 2002 Bulletin (Letters), James Hackett expressed displeasure with Legal Aid Services of Oregon (LASO) and the Oregon Law Center (OLC) over their handling of a case, and urged readers not to contribute to the Campaign for Equal Justice. We write on behalf of LASO and OLC as chairs of their respective boards of directors. Since Mr. Hackett chose to condemn both of our organizations, which together serve three-fourths of this state, on the basis of his experiences in one case out of one of our offices, we would like to provide a more complete, and we hope balanced perspective.

LASO and OLC have no quarrel with the underlying premise that we should use our limited resources wisely by serving low income clients who have meritorious claims. About 300,000 Oregonians in poverty in the LASO/OLC service area meet our income eligibility guidelines (for example, $22,625 annually for a family of four). We cannot represent about two out of three applicants because of inadequate staffing to meet demand. Our clients are among the poorest and most vulnerable human beings in our communities, such as the elderly and disabled, single parents, victims of chronic physical abuse and the homeless. Our case acceptance priorities emphasize basic survival issues — shelter, minimal health care, protection from violence and access to available government benefits such as Social Security, to name a few. Domestic violence cases alone comprise about 40 percent of the total caseload in Legal Aid offices.

Contrary to Mr. Hackett’s assertions, LASO and OLC have no incentive to waste staff time and resources pursuing frivolous claims, because we have our hands full just serving those who have legitimate claims. Although he believes that Legal Aid only does high profile, watershed cases, the reality is that we serve thousands of low income individuals every year all over this state in a wide variety of cases to obtain or protect the basic necessities of life.

Each office has a case management system to assure that attorneys are pursuing meritorious claims and defenses. The manager of each regional office is responsible for oversight of all cases in that office. We also have experienced poverty law specialists who provide legal expertise and oversight to all of our offices. If a class action or other large case is filed, it is because the legal problem affects a large number of low-income people and requires efficient use of limited resources to achieve a remedy.

Mr. Hackett is the executive director of the Linn-Benton Housing Authority (LBHA) and an administrative hearings officer. He and LBHA were defendants in the litigation he cited as the basis for his remarks. After that case was decided, the executive directors of LASO and OLC met with Mr. Hackett and LBHA’s attorney, and with the LBHA board of directors at one of their meetings, to discuss these concerns within the existing grievance procedures. They offered to work with Mr. Hackett and the LBHA Board to find a long-term solution. They suggested that both Legal Aid and LBHA could try to address law practice issues in the future by referring to the OSB Statement of Professionalism as the standard. After further correspondence, they asked Mr. Hackett and LBHA to contact them if there were any more difficulties. There was no further communication for about a year, and then Mr. Hackett wrote to the Bulletin. In light of his letter, attempts will be made again to meet with Mr. Hackett and the LBHA’s attorney so that he can express his concerns directly.

Michael Mason
Chair, Legal Aid Services of Oregon
Lou Savage
Chair, Oregon Law Center

A Letter on Letters
I read with interest Richard A. Weill’s 'unwelcome letter' concerning the Bulletin’s decision to publish in its November issue a letter from crime victim advocate Steve Doell. As an attorney member of the House Judiciary Committee in 1993 and the Senate Judiciary Committee in 1995, I can readily attest to Mr. Doell’s impact on this state’s crime victims’ legislation and sentencing policies. While Steve Doell and I may have clashed over various legislative proposals, I found Mr. Doell to be a passionate and articulate advocate who has had a major impact on criminal law in the state of Oregon. I commend the Bulletin for reaching out to non-lawyers who, because of their experience, refreshingly remind us why we like to practice law as a vocation.

Kenneth L. Baker
Clackamas


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