Oregon State Bar Bulletin — NOVEMBER 2003

Letters

Dental Practices
The Oregon Board of Dentistry, in an effort to be pro-active, has asked for the opportunity to inform those who provide advice to dentists of some changes that have taken place regarding the ownership of a dental practice.

The 2003 Oregon Legislature passed Senate Bill 390, which was signed into law by the governor and will take effect Jan.1, 2004. This new law allows certain entities to legally operate a dental clinic and engage in the practice of dentistry.

These entities include local government agencies, federally qualified community health centers and 501(c)(3) non-profit charitable corporations providing dental services by volunteer licensed dentists and institutions or programs accredited by the Commission of Dental Accreditation of the American Dental Association.

Changes to the law also allow for the orderly transition of a dental office upon the disability or death of an owner dentist by allowing certain persons (such as an executor, personal representative or guardian) to retain an ownership interest for 12 months. Upon request, the board may extend this 12-month period.

Unchanged is the fact that the law does not allow ó and it is an illegal practice ó for a dentist to form or maintain a business relationship that allows any ownership by non-dentists. The board has become aware that some individuals have advised that there may be tax advantages to dentists having family members (who are not licensed dentists) owning a portion of a dental practice. However, Oregon law prevents this, and if a complaint is filed with the board, it must be investigated and the board will be obligated to enforce the law.

If you have specific questions regarding these changes and the law, you may contact me at the Oregon Board of Dentistry by e-mail at Patrick.Braatz@state.or.us.

Patrick D. Braatz
Executive director,
Oregon Board of Dentistry

Recalling a Recall
The excitement over the recall of Californiaís governor brings to mind an interesting episode in Oregonís experience with recall of public officer.

J.E. Bennett was a Portland city commissioner for a term from 1951 to 1955. In 1952 he was subject to a recall election, and he was recalled by the Portland voters. Oregonís recall procedure, unlike Californiaís, did not provide for election of a substitute at the same recall election. Immediately after the recall Bennett resigned, and the city council appointed Nathan A. Boody to fill the vacancy. Petitions were then filed to place Bennettís name on the ballot for re-election to the same position from which he had just been recalled.

The recall committee, represented by Duane Vergeer and Charles Crookham, filed a suit for a declaratory judgment to determine whether Bennett was disqualified from seeking the office. Bennett was represented by Leo Levenson and Arthur Dibble. The case came before a three-judge panel of circuit judges consisting of James Crawford, MacCormac Snow and Eugene Oppenheimer. They determined that Bennett was disqualified from seeking reelection to the vacancy created by the recall, and that the disqualification continued for the balance of the term from which he was recalled.

On appeal the bulk of the opinion by Chief Justice Brand was concerned with the question of whether a declaratory judgment proceeding was an appropriate method, or whether it was premature prior to the election. The court held that the procedure was proper, because the defendant Gleason, who was registrar of elections, was uncertain as to whether he should place Bennettís name on the ballot. The court then held that the recall was for the entire term for which Bennett had originally been elected, and that he was disqualified from running for reelection to the same office, and for the same term, from which he had been recalled. Recall Bennett Committee v. Bennett, et. al., 196 Or. 299, 249 P.2d 479 (1952).

Randall B. Kester
Portland

Follow the Rules
Itís the small things that make a difference. If every lawyer would follow UTCR 5.100 every time, my staff and I, lawyers, their staff and their clients would all be better off. Hereís why.

UTCR 5.100 requires attorneys to serve non-stipulated forms of judgments or orders to opposing counsel three days before submitting it to the court. The "serve before send" rule applies to unrepresented parties but the time is seven days.

If the form of service is by mail, please add three more days to the "before" time (ORCP 10C).

If you follow the rule and so represent in the cover letter, your orders will be signed immediately upon receipt. If you do not follow the rule, I have two approaches Ė either I mail it back to you with a letter about UTCR 5.100, or I put it on the bottom of the pile and forget about it. No amount of calling by you will cure it. Due to budget cuts, our data entry is way behind. Therefore I donít even look at the file again for 30 days to ensure time for OJIN to reflect if objections are in.

The rule is simple and if used, it is easy for all. If you as professionals make an honest attempt to resolve the dispute, I will give you the highest priority on my docket and help you. If you follow the process and your opponent does not, it will be noted. If you follow the process and the order is signed, and then the opponent files untimely objections (to the court and not to you as required by UTCR 5.100), I believe that becomes a matter for the PLF, the disciplinary office or the appellate courts. Please be reasonable in the time to respond that you afford your opponent. While three plus three is the minimum, I think 10 to 14 days is fairer.

Many lawyers follow the procedure. However, Iíve noted an increase in letters that say "Please hold it for X days to await objections." My desk is not large enough, my staff is not large enough, and my patience is too short to accommodate such requests.

Thank you to all who make it easier to timely respond to your requests.

Deanne L. Darling
Clackams County Circuit Court
Oregon City

Since When?
I received the announcement last month of the 20th anniversary picnic for the Oregon Law Foundation. I was surprised, as I thought that I set up the OLF during my tenure as president in 1980-81. I enclose a copy of the original articles of incorporation which we filed. Howard Rankin was the first president and I was the first treasurer.

I remember the circumstances well. I attended the president-electsí meeting at the ABA in New York City in the summer of 1980. One of the meetings was on bar foundations and IOLTA. To my surprise, Oregon and Mississippi were the only two states that did not have bar foundations. That became the goalpost of my tenure.

I think the law foundation is at least 22 years old and that we should have our facts and history straight.

Thomas C. Howser
Ashland

OLF Administrator Rich Cecchetti responds: What precipitated the invitation was the fact that the U.S. Supreme Court declared on March 26 that the Interest on Lawyers Trust Accounts was constitutional, which coincidentally marked the 20th year of the IOLTA program in Oregon. The invitation should have more specifically stated that the celebration was to recognize the success of the 20th anniversary of IOLTA and the 22nd year since the founding of the Oregon Law Foundation. My apologizes to Mr. Howser, especially since it was because of his leadership and the support of the Oregon State Bar that the foundation has successfully granted over $14 million dollars to legal services providers in Oregon over the past 20 years.

Thought-provoking
It has long been apparent to me that Professor/Justice Hans Linde operates at an intellectual level beyond the reach of many of us regular lawyers. In law school, in order to better understand the impact and significance of a Linde opinion or article, I often found it helpful to slow down and carefully read and digest the meaning of every sentence.

Both during law school, and in the many years since, I have been provoked and inspired by the written work of this great Oregon legal scholar. As usual, his latest little piece in the October 2003 Bulletin ("Kadderly at 100") is both thought-provoking and inspiring.

Rob Bovett
Newport

Manners Matter
The August/September 2003 Bulletin contained more articles about professionalism, civility and integrity, all on the large scale of lawyer interaction.

On a smaller scale, there is such a thing as good attorney inter-relationships regarding wills and trusts.

Is it too difficult to notify the original attorney when you are preparing a will for a new client that revokes the old will?

Is it also too much trouble to notify the attorney who prepared the will that you are handling the probate of that will?

It may be somewhat anachronistic, but good, old fashioned manners would seem to apply.

William D. McDonald
Milwaukie


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