Oregon State Bar Bulletin ó NOVEMBER 2003

REPORT TO MEMBERS
Feedback on disciplinary counselís office and disciplinary process
By Charles R. Williamson

The OSB House of Delegates approved a resolution at its 2002 annual meeting directing the bar to make various changes in the Oregon State Bar disciplinary process. The Board of Governors and bar staff have worked diligently to implement that resolution, and the 2003 House of Delegates agenda contains a full report on the changes that have been made to date.

The Board of Governors also determined that it would be worthwhile to obtain input from lawyers representing the bar on a volunteer basis in disciplinary cases and lawyers representing accused lawyers in disciplinary proceedings on how they felt the disciplinary process was working and on the performance of disciplinary counselís office.

The Board of Governors Policy and Governance Committee reviewed and approved the survey instruments, and executive director Karen Garst and bar staff distributed the surveys and tabulated the results. Forty-nine bar counsel surveys were distributed, and 20 were returned. Seventeen defense counsel were sent surveys, and six surveys plus one letter were received in response. The overall response rate was an excellent 40 percent.

The Policy and Governance Committee reviewed the survey results and concluded that no additional changes in the disciplinary process are needed based on the survey results. Many of the issues respondents have raised are being addressed by the recent changes mentioned above. The committee nevertheless agreed that it should inform the respondents of the survey results and also distribute the highlights of the survey results in article format to the general membership.

Survey Results
Bar counsel gave Disciplinary Counselís Office consistently high marks in: 1) accessibility to accuseds or defense counsel; 2) flexibility in accommodating the scheduling needs of all parties; 3) professional courtesy to accuseds or defense counsel; 4) substantive legal knowledge; 5) procedural knowledge; 6) overall timeliness and 7) openness to settlement discussions with accuseds or defense counsel. One bar counsel felt a case wasnít settled because disciplinary counsel wanted too much of a sanction. When asked about whether they had observed any instances where they believed the bar was over zealous in the prosecution of a case, 13 of the 20 respondents said no. Several of the remaining seven respondents expressed some concerns about the approaches taken in particular cases. The Policy and Governance Committee did not believe these comments warranted further action. Questions were also asked about differences in: approaches toward settlement of cases by disciplinary counselís office and the State Professional Responsibility Board as compared to negotiations in other aspects of respondentsí practices; whether respondents felt that the SPRB was authorizing prosecutions to develop new law where the meaning of a disciplinary rule was unclear and whether respondents had noticed that the SPRB had become more or less prosecutorial in its approach to disciplinary cases in recent years. Finally, respondents were asked for input on changes respondents would like to see in the disciplinary process. No strong themes arose from the 20 responses to these questions, though several respondents felt the bar should consider the use of mediation in the disciplinary process. A rule change to allow for this has already been approved.

Six defense counsel completed surveys, giving disciplinary counselís office varying marks in the following areas:

Accessibility to accuseds or defense counsel: 6 excellent, 1 good (person split vote between accessibility to accuseds and defense counsel).

Flexibility in accommodating the scheduling needs of all parties: 3 excellent, 2 good, 2 fair.

Professional courtesy to accuseds or defense counsel: 4 excellent, 1 good, 1 fair.

Substantive legal knowledge: 4 excellent, 2 good.

Procedural knowledge: 3 excellent, 2 good, 1 said 'fine.'

Overall timeliness: 1 excellent, 3 good, 1 fair. And one said, 'Generally good; there are sometimes delays but I donít see this as a big issue.'

Openness to settlement/willingness to convey offers to SPRB: 1 excellent, 3 good, 1 fair. And one respondent submitted comments about unintentional errors being construed by the bar as intentional conduct and the need for the bar to show a little more willingness to compromise the sanction where documented emotional problems are involved.

As to concerns about overzealousness of disciplinary counselís office, four of the six defense counsel did not have such concerns. One respondent identified several cases he felt fit into this category, and one respondent had the same comments as set forth above under 'openness to settlement/willingness to convey offers to SPRB.' Comments regarding possible changes to the disciplinary process included: speeding up the closure of cases; focusing on the most serious cases; eliminating local professional responsibility committees; considering diversion as a sanction option and giving greater discretion to resolve cases to individual disciplinary counsel. The results of these surveys have been shared with the State Professional Responsibility Board and the Oregon Supreme Court.

The Board of Governors also met with the SPRB and the state supreme court on Sept. 26, 2003 to review the changes made to the disciplinary process since the 2002 OSB House of Delegates meeting. The Board of Governors is in the process of proposing further changes in the bar Rules of Procedure to streamline the local professional responsibility committee process. Staffing adjustments for the new OSB client assistance office and disciplinary counselís office have also been made to help speed up the review and resolution of inquiries and complaints about bar members. Delay in the investigation of inquiries and complaints and in the resolution of formal disciplinary proceedings remains a concern of the board.

Bar members with questions or comments about the foregoing are encouraged to contact me or other members of the Board of Governors. The Board of Governors will continue to monitor and evaluate the operation of the disciplinary process.

Anyone interested in receiving a copy of the survey results can contact Judy Coons in the OSB general counselís office at (503) 620-0222, ext. 334, or e-mail her at jcoons@osbar.org.

ABOUT THE AUTHOR
The author, a Portland attorney, is president of the Oregon State Bar. He can be reached at charlie@kelrun.com.

© 2003 Charles R. Williamson


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