Oregon State Bar Bulletin — NOVEMBER 2004

Letters

Embracing Diversity
I attended the CLE on diversity at the Oregon Convention Center in Portland on Sept. 10, 2004. The presenter was Cliff Jones, whose presentation was very good and thought-provoking. In light of the comments from earlier programs on the same topic, I was pleasantly surprised at the quality of this program.

However, I believe that this program could have been even better if Mr. Jones had included in his presentation an explanation of the personal and business-related reasons why we should embrace the elimination of bias and make the effort to be as inclusive as possible.

My experience, both as a lawyer and a businessman, is that those who can see a personal or professional benefit as a result of embracing diversity are much more successful in their efforts to address this issue. Businesses that are successful in this area recognize that embracing diversity has a positive impact to their bottom line. In sales it means broadening the customer base. In operations it means having a broader base of prospective employees from which to select. In the legal professional it can mean a broader base of clients.

On a personal level, many of us are experiencing changes in our own families as our children are marrying outside of our own race and ethnic background. These changes are the natural result of the changing attitudes of the next generation, as well as the lowering of barriers to immigration and travel.

Although I recognize that embracing diversity has its own rewards, I still think that enlightened self-interest can be a great motivator and does result in a more successful effort to embrace diversity.

Robert H. Bay
Tigard

Please note: All of the following letters are referencing the first letter from the August/September issue of the bulletin.

Serve the Public
As an Oregon bar member practicing in Hawaii, I would like to offer my feedback to Carol A. Smoots’ letter, "Rethinking Discipline" (August/September 2004). Ms. Smoots apparently thinks, like so many bar members, that discipline should be secret. The purpose of discipline is to protect the public — we are told this over and over again. How is the public protected if attorney discipline is not widely publicized? Shouldn’t we members of the bar want to know when our fellow members are disciplined? Here in Hawaii, attorney discipline is mostly secret. Most discipline consists of informal admonitions and private reprimands for which there is no publicity. Attorneys can have multiple such disciplinary actions taken, and there is no way to find out who these attorneys are. It is about time that we members of the legal profession stop thinking of ourselves and start thinking of our public obligation. If attorneys do not want to suffer the "humiliation" of public discipline, then let them obey the ethical rules. It is time for our members to stop trying to protect our bad apples and remember that we are here to serve the public — the public is not here to serve us!

Earle A. Partington
Honolulu

Worthy Suggestion
Carol Smoots makes very insightful comments in her article about rethinking discipline (Letters, August/September 2004). I agree with her entirely. The Bulletin should seriously consider her suggestion.

Ryan Steen
Portland

Valuable Service
I must respectfully disagree with Carol A. Smoots (Letters, August/September 2004). I think that publication of discipline is valuable.

Publication of the names of those disciplined informs me of those attorneys who are not currently entitled to practice law. If one of them contacted me purporting to represent a client, I would know that the attorney was not entitled to do so.

In addition, I can learn about the specific behavior that resulted in discipline. This allows me to avoid unethical behavior in situations I might not otherwise consider as involving an ethical matter.

Attorneys occupy a unique position in our society. We are granted many privileges and powers that are not available to non-attorneys. Responsibility is, and should be, a corollary of such power. Public humiliation among our peers for unethical acts is a small price to pay.

Scott O. Pratt
Portland

Where to Stop?
I write in response to Ms. Smoots’ letter (August/September 2004). Boy, oh boy, I could not agree more! It is very unfair, insensitive and down right offensive for the OSB to have the temerity to publish the results of lawyer discipline cases. What were we thinking?!

The lowest level of discipline is the private reprimand. The poor beleaguered lawyer must bear the embarrassment of receiving a letter from the bar, which the unwitting lawyer probably reads, privately reprimanding his or her unethical conduct. What must the poor miscreant think? It would be much fairer, more sensitive, if private reprimands were truly private. The bar should write that letter but not mail it. Keep it private, just like the rules suggest!

As for those public reprimands, how public does it have to be? Isn’t it public enough if the letter goes through the public mail system? Why print it in the bar Bulletin or publish it in the advance sheets? Someone might read it! Wouldn’t that be embarrassing?! Worse yet, some news agency might read it and actually write an article in the Oregonian, where some nonlawyer member of the public (i.e., one of our clients) might read it. That sort of publicity seems so unfair! I am sure the public would support the notion of us lawyers keeping our disciplinary affairs private — it is so much more sensitive. After all, what right does the public have to know?

And then there is the matter of the more serious violations — suspensions from the practice of law or even disbarments. Well, these poor folks will certainly suffer enough without telling anyone about their misdeeds. Publication only makes the matter worse. We should embrace and nurture them. I think group hugs are what is called for, not these nasty public notices. My gosh, what might their clients think?

In fact, Ms. Smoots’ proposals don’t go far enough. Why limit our supportive fellowship to our fellow lawyers? Lots of other folks out there are in need of dignity and compassion. We should let them know we feel their pain!

What about convicted burglars, rapists and thieves? They are even in more need of our fellowship and support than are our wayward brothers and sisters at the bar. Did you know that criminal records are actually made public? Why would we subject these poor souls to the tragedy of prison sentences, parole and probation, when what they obviously need is more dignity and compassion? We should do away with all those embarrassing prison sentences, branding these poor people as "convicts"!

Thank you, Ms. Smoots, for opening my eyes. We need to embrace and support rather than punish and humiliate. I am sure the people of Oregon, especially those that have been harmed by lawyers engaged in unethical conduct, will fully support your approach.

Peter R. Chamberlain
Portland

Why Not Lawyers?
The letter of Ms. Smoots (August/September 2004) is somewhat disconcerting. She appears to be complaining about the reports filed in the OSB Bulletin regarding lawyer discipline.

Harsh? I beg your pardon. The rules that have been broken by lawyers need to be seen and reported. I agree that putting a lawyer in "stocks or tarring and feathering" would be a bit over the limit — but the factual info that has been printed has been deserved, else why would the name be in print?

The only humiliation that is involved clearly involves the lawyer who has been censured. And he or she deserves some rebuke for not observing the rules. Every other criminal has to face some "rebuke" for failure to mind their P’s & Q’s. Why not lawyers?

Thomas P. Joseph Jr.
Portland

Re: Rethinking Discipline
I have read almost every published issue of the bar Bulletin during my 25 year career as an Oregon legal secretary and assistant. I received an associate degree as a legal assistant from PCC in 1986, and without learning the information on law ethics required by that program I would have no clue what is required of an attorney who practices law. I am writing to vote that you keep the discipline section in the Bulletin to help educate everyone in the profession. If lawyers are being damaged when their names are used, their names can be eliminated from the publication without harming the value of knowing that the bar is serious about enforcing ethics rules. It should remain easy to discover what complaints and discipline attorneys have received with a simple phone call to the bar.

In my experience there are bad lawyers practicing in Oregon who never follow the rules, justifying their unethical tactics by claiming they must bend the rules to competently represent their clients. It is nonsense that these culprits never get caught or disciplined for their conduct. It seems like most of the ethics complaints that lawyers get disciplined for are based on money losses to a client such as trust account abuses and conflicts of interest. If that observation is correct, then innocent opposing parties or attorneys must continue to fight the same battles with these unethical culprits over and over again.

Terri Pierson Staples
Portland

No Names, Please
I write to offer my two cents regarding Carol Smoots’ suggestion that the Bulletin discontinue listing the names of attorneys subject to disciplinary actions. I agree with her that printing the attorneys’ names unnecessarily humiliates attorneys who are the subjects of bar disciplinary action. I, however, also agree with Andy Simrin ("Rethinking Discipline, Continued") and Jan Wilson ("Details are Needed"), who expressed their views in the October 2004 Bulletin. Simrin and Wilson stated that they learned from the facts provided in the Bulletin specifying situations that lead to discipline so that they could "learn from the mistakes of others," as Simrin put it.

I suggest that the Bulletin continue to list bar discipline cases, but in another format and without the offending attorney’s name. The listing could be titled in a more helpful way than using the attorney’s name. For example "Signing as Notary Leads to 30-Day Suspension." Under the caption, magazine could list (with the same level of detail as is listed now) the facts of the case. This would serve the need of giving important information to Oregon attorneys without the humiliation generated by disclosing the name of the attorney involved.

The bar would, of course, continue to retain all disciplinary records in files under the disciplined attorneys’ names at its offices. These files would remain open for public review under the same procedures as are in place now. Anyone seeking to research the discipline history of an attorney could obtain the necessary information from the bar.

Thank you for allowing me to air my opinion.

Patricia Heatherman
Bend

Name the Names
I missed the August/September OSB Bulletin and the Smoots letter regarding the humiliation of lawyers who violate our ethics, but I did not miss the heady discussion that followed in the October edition. I appreciate it all. I fall on the side of disclosing the person and the dirty details as well. I read and learn from the discussions, attempt to learn from my own mistakes and hope to never fall short of the ethical mark. I have seen several friends, a few acquaintances and an occasional adversary mentioned in the reports. And I have had the opportunity to grouse about how the mighty also fall victim to ethical lapses. Naming names and their deeds shows us that it is not just the evil incarnate who fall short of our ethical obligations but lawyers like you and me. And, this practice has allowed me to call to offer encouragement and support to those overcoming challenges that caused or result from their ethical lapses. In the end I support the mention of lawyer names and the details of their ethical misdeeds because it gives us a measure of humility and a high motivation to practice law ethically. Name names even if these embarrassing disclosures could one day include me.

Ernest E. Estes
Portland

Editor’s note: To everyone who responded to our request for feedback on Ms. Smoots’ letter in the August/September 2004 issue: Thank you. Your feedback has been very much appreciated, and be assured it is being given serious consideration.


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