Oregon State Bar Bulletin — OCTOBER 2005

Oregon Legal Heritage
Assessing a Legacy
A bar is born
By Gordon B. Dodds & Cathy Croghan Alzner

This month, the Oregon State Bar observes its 70th anniversary. But its roots go back nearly a half century earlier, with the formation of its predecessor organization, the Oregon Bar Association. "Serving Justice: A History of the Oregon State Bar," published this year by the OSB, describes the colorful, sometimes checkered, chronicles of what today is one of the nation’s most progressive state bars.

In "Serving Justice," you will discover with pride that despite its Wild West, frontier origins, the state’s first legal organization was led by regionally and nationally prominent individuals. You also will learn interesting facts such as that all Oregon governors before 1882 were attorneys, as well as when the first black lawyer practiced in Oregon (1903, McCants Stewart).

The following excerpt from Chapter One of "Serving Justice" describes the rough-and-tumble years leading up to the formation, in 1935, of the Oregon State Bar.

• • • • •

A little band of eminent lawyers met in Portland in 1890 to form the Oregon Bar Association. Cyrus A. Dolph, the guiding spirit behind this venture and its first president, led the effort to draw up a constitution and bylaws, form an executive committee and plan the first annual meeting, to be held in the following year. The association’s purposes were "to cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to maintain the standard of integrity, honor and courtesy of the legal profession, and to cherish the spirit of brotherhood among the members thereof."1 Before 1890, 29 states and the District of Columbia had founded bar associations.

Present at the founding
of the Oregon Bar Association
was Cyrus A. Dolph,
the guiding spirit in
the movement to create
the Oregon bar and
the association’s
founding president.

On Oct. 17, 1891, President Dolph called to order the first annual meeting of the association in the courtroom of Federal District Judge Matthew P. Deady. Dolph was born in New York, came to Oregon in 1859, taught school for a time and was admitted to the bar in 1866. In 1883, after a stint as Portland city attorney, he became the senior member of the law firm of Dolph, Mallory, Bellinger, and Simon. Like Dolph, many of the others who attended this meeting were distinguished in blending political and legal careers. Deady was Oregon’s most important judge in the 19th century. George Williams was once attorney general of the United States. Rufus Mallory had been a member of Congress and William W. Thayer governor of Oregon. William S. Newbury had been mayor of Portland and Erastus D. Shattuck a justice of the Oregon Supreme Court.2

After the approval of the minutes of the previous meeting, the delegates elected 28 new members, each of whom had to have been a member of the bar for at least one year. Old and new members then chose officers for the coming year: Lewis B. Cox, president; Charles H. Carey, secretary; and Osian F. Paxton, treasurer. They also elected vice-presidents for each of the seven judicial districts and four members of the executive committee.3

Among those present
at the founding of the
Oregon Bar Association
was the Hon. Matthew Deady,
widely regarded as Oregon’s most important judge in the 19th century.

The morning session closed with an address by the retiring president, who stressed three areas in which bar associations could contribute to the advancement of the legal profession: to enlarge the minds of individual members by giving them contact with other lawyers; to gain the benefit of "fraternal criticism," by which "we shall be incited to greater industry and zeal, and the standard of professional competency will be thereby elevated;" and to "take united action concerning legislation relating to our system of jurisprudence or affecting the material interests of our State."

More specifically, and significantly in concert with the first aim of the American Bar Association, Dolph called for the formation of an Oregon Bar Association committee to submit to the state supreme court "for adoption a course of study to be pursued by students at law, and providing also for such a system of examination as will guarantee the exclusion of all applicants not possessing requisite qualifications." The president concluded his address by touching on other themes that would engage the association throughout its life: legal ethics, excessive litigation, disrespect for judges, appeals to opinion to influence litigation and contingency fees.4

Following the presidential address and another by Lewis L. McArthur on "The Formation and Adoption of the Constitution of Oregon," the delegates debated and adopted four resolutions — all directed to the Committee on Jurisprudence and Statutory Reform. The first concerned Multnomah County’s reputation as a "divorce mill," where 100-fold more divorces were granted annually than in jurisdictions of comparable population. The committee was to prepare a bill addressing this problem for submission to the state legislature if approved at the next annual meeting. The committee was also to study and report to the next meeting (but not to draw up bills) on "the unnecessary frequency of oaths and affidavits required under the existing laws of this state," the "fees of officers connected with the official administration of justice," and the election of a non-partisan judiciary. The delegates also thanked the Union Pacific and Southern Pacific Railroads for— as was the custom of the day — providing free transportation to Portland for out-of-city delegates.

Setting Rules for Admission
The Committee on Legal Education and Admission to the bar was concerned with upgrading and codifying rules governing admission to the bar. Between 1892 and 1933, the association grappled with elevating the standards of admission, flushing out individuals who continued to practice with temporary licenses, requiring that they either obtain permanent admission or be disbarred, and preventing the admission of those "who are immoral, dishonest" and entering the field "solely for the money."5

At the 1892 meeting, the committee adopted rules that included:

– an examination committee composed of seven attorneys who would determine all applicants’ "learning ability" and "moral character;"

– documentation by applicants of college "or other literary institution" graduation or the reading of law for at least two or three years, verification of an ability to learn and affirmation by two attorneys that they were "of good moral character."

– proof of U.S. citizenship.

The committee would also conduct an examination containing both oral and written components and then report to the chief justice of the Oregon Supreme Court whether to recommend or decline each application for admission. If recommended, the applicant would then be examined by the justices in open court on such topics as common law, the history and constitutional law of England prior to the Declaration of Independence, the history and constitutional law of the United States and the constitutional law of Oregon. Applicants found qualified at the conclusion of this process would be admitted to practice.

The committee also made provision for qualifying attorneys licensed in other jurisdictions where common law prevailed by stating that such applicants would be provisionally licensed for nine months but then must apply for permanent license.6

The new requirements added to the burden of the three-member court, which was already overworked as the result of increasing litigation.

At the 1903 annual meeting the Committee on Legal Education and Admission to the bar proposed a solution, requesting that the supreme court appoint a standing committee to assist with bar examinations. The new committee would conduct examinations and endeavor to raise the standards, as directed by the court. For applicants who did not hold a bachelor of arts or equivalent degree from a recognized institution, the committee would administer a special examination to determine their education and knowledge.

Establishing Standards of Conduct
From its inception, the bar has endeavored to assure that all those practicing law are of high moral character, and in Oregon the Grievance Committee sought the "correction of unprofessional conduct" and the "general purification of the bar," a task that at first included lawyers not associated with the Oregon bar. One of the issues the committee addressed was advertising, which though not illegal was considered unprofessional.7

Throughout the early years, members also were investigated for such offenses as libel, "gross drunkenness and misbehavior in court," misappropriation of funds, and perjury.8

At the 1895 meeting the Grievance Committee lamented the necessity for disbarment proceedings, complaining that the investigations were so time consuming and prosecution so long delayed that attorneys could continue to practice long after they were deemed unfit. The committee requested the adoption of measures or a statute that would secure the prompt disposition of such cases, warning that if the bar were not diligent in removing disreputable members, "its reputation will be so tarnished that it will take years...to regain...."9

Underlying Weaknesses of the Association
Although the Oregon Bar Association entered the tumultuous decades of the 1930s with some record of success, its entire history had been marked mainly by lethargy and impotence. At the annual meeting in 1897, the president declared "next in order of business is the report of the executive committee. No report of this committee is on file, and it seems none was read at the last annual meeting." The record of two speakers’ addresses at the annual meeting in 1904 was reported as: "These two addresses were extempore, and the official stenographer who was employed to report this meeting failed to transcribe her notes, and hence it will be impossible to print the addresses as is the custom." In the same year the executive committee reported lugubriously that "it had trouble in procuring the assent of the members of the association to prepare papers for the annual meeting." As late as 1928 the nominating committee did not meet because it was impossible to gather the members into a quorum.10

The Demise of the Association and the Creation of an Integrated Bar
A lack of success in its legislative endeavors, the efforts to reshape the public’s perception of the profession, and the great national economic depression of the 1930s combined to bring to fruition the demise of the Oregon Bar Association and the creation of its successor, the incorporated or integrated bar, in 1935.

The integrated bar movement in the United States was a development of the early 20th century. In 1914 the Wisconsin Bar Association considered the matter of an all-inclusive and self-governing bar; in 1915 the Nebraska Bar Association discussed the matter of an incorporated bar and in 1918 the California Bar Association appointed a committee to study the matter. The American Judicature Society provided the support of a national organization for such efforts when it published a model statute for an integrated bar in 1919.11

In Oregon the campaign for the integrated bar began in 1924 when association president Fred W. Wilson proposed that a bill to incorporate the bar of Oregon be introduced into the state legislature. Wilson said that it was time for Oregon to join the three states that had adopted the integrated bar or at least join the 11 states that were considering doing so. The president supported his case by stating that the incorporated bar association would have a treasury to pay the salary of a secretary (who was now a volunteer) and other expenses that were now borne by its officers.

To further the cause, the Oregon Law Review carried a long article in December 1924 by Herbert Harley, the secretary of the American Judicature Society. Harley said there would be opposition ("certain practitioners who sense an encroachment upon what they regard as their private preserves"), but he hoped that this could be overcome by clarifying the advantages of integration. These advantages he saw to be: the greater power to influence legislation; the power to discipline erring lawyers; opportunities to inform the public about the duties and merits of the profession and the publication of a journal. To ease the path to incorporation, Harley recommended that the new bar organization not be empowered to examine for admission to the bar and not cause controversy by taking stands on issues of public policy.12 The integrated bar was debated at the annual meeting in the fall of 1924, but no action was taken by the delegates.13

In spite of this rejection, the cause of integration advanced. By 1928 the American Bar Association was holding conferences at its annual meetings "to promote interest in and the work of the state bar associations." At the annual meetings of the Oregon Bar Association, talks were delivered by pro-integration lawyers from California, Idaho and Washington.14

Under the leadership of the dynamic president E. O. Immel, who was working hard simultaneously on legislative and public relations endeavors, the association at its 1930 annual meeting created "a committee to study the incorporation of the state bar association and report back to the next meeting as to its advantages and disadvantages."

The committee, with Oscar Hayter as its chair, reported its progress at the annual meeting in 1931 and recommended that it draw up an incorporation bill for consideration at the next year’s annual meeting. The committee did present such a bill in 1932. The bill was approved by the Oregon Bar Association and discussed at a meeting of the Multnomah County Bar Association and at other meetings around the state, but its smooth progress ended in the legislature. The incorporation bill came to a vote in the Oregon House of Representatives in 1933, where it passed with only one dissenting vote but was defeated by one vote in the Senate.15

Fortunately, defeat did not engender discouragement. At the 1933 annual meeting, President Arthur K. McMahon spent most of his presidential address urging the virtues of an integrated bar and pointing out that 20 states had adopted such a system. The major invited speaker at this convention was Jess Hawley, who had shepherded the integrated bar bill through the Idaho legislature. Hawley pointed out the ways in which this had been done (including having the bill that had been bottled up by lawyers in the Judiciary Committee sent to the more favorable Livestock Committee as that body "had jurisdiction over all predatory animals"). The integrated bar committee urged that the bill be resubmitted at the 1935 session.16 All this persistence paid off, and the bill creating the new organization was passed in 1935.

Endnotes
1. There are no extant records of the Association before the report of the first annual meeting in 1891. These records contain the quotation about purposes, and reveal the existence of a constitution, by-laws, executive committee and Dolph’s presidency. Proceedings of the Oregon Bar Association at Its Annual Meeting, 1891 (n.p., n.p., n.d.) 3, 24.

2. History of the Bench and Bar of Oregon (Portland: Historical Publishing Company, 1910,123-124, 182-183, 278, 198, 274; Malcolm Clark, Jr., ed., Pharisee among Philistines: The Diary of Judge Matthew P. Deady, 1871-1892, 2 vols.(Portland: Oregon Historical Society) 2:618-619.

3. Proceedings, 1891, 7-12.

4. Ibid., 22-38.

5. George B. Dorris, "Admission to the bar," Proceedings 1896, 43.

6. Proceedings, 1892, 35-37.

7. Proceedings, 1892, 337-338.

8. Proceedings, 1894, 115-116.

9. Proceedings, 1895, 117.

10. Proceedings, 1897, 104-105; 1904, 4-5; Oregon Law Review 9 (1929-1930): 23.

11. Joe G. Sweet, "The Problems and Activities of the California State Bar," Oregon Law Review 10( 1930-1931): 39-40.; "The Incorporated Bar Act," Ibid., 12 (1931-1932): 63.

12. Herbert Harley, "Organizing the bar for Public Service," Oregon Law Review 4 (1924-1925):1-17.

13. Ibid., 68.

14. Joe G. Sweet, "The Problems and Activities of the California State Bar,"Oregon Law Review 10 (1930-1931): 39.

15. Proceedings, Oregon Law Review 10 (1930-1931): 83-84; "The Oregon State Bar Association Meeting," 11 (1931-1932): 82-83; "A Bill for the Incorporation of ‘The State Bar of Oregon,’" 12 (1932-1933): 37-46; Ibid. "The Incorporated Bar Act," 62-63.

16. Arthur K. McMahon, "President’s Address," Ibid., 13 (1933-1934): 3-8; Jess Hawley, "Renaissance of the bar," 19-30; "Report of the Committee on the Incorporation of The Oregon Bar Association," Ibid., 14 (1934-1935): 203-204.

ABOUT THE AUTHORS
"Serving Justice: A History of the Oregon State Bar," by the late Gordon B. Dodds and Portland State University archivist Cathy Croghan Alzner, can be ordered by writing the OSB at P.O. Box 1689, Lake Oswego, OR 97035, or by phone: 503-684-7413, or toll-free in Oregon (800) 452-8260, ext. 413. Softbound: $35; Hardbound $50 per book, plus $5 postage and handling.

© 2005 Gordon B. Dodds & Cathy Croghan Alzner


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