Oregon State Bar Bulletin — FEBRUARY/MARCH 2006

Bar Counsel
Q & A: Understanding the OSB Disciplinary Board
By George A. Riemer

1. What is the Disciplinary Board (hereafter DB)?
The DB is a statutory body (ORS 9.534) appointed by the Oregon Supreme Court to hear and decide formal disciplinary charges against members of the Oregon State Bar. Essentially, the DB is the trial court of lawyer disciplinary proceedings. The Board of Governors nominates members to serve on the Disciplinary Board and the court makes the final appointments. The DB should not be confused with the State Professional Responsibility Board (SPRB). The SPRB decides if a lawyer should be formally charged with alleged ethics violations.

2. How many people serve on the DB?
Bar Rule of Procedure 2.3(a) sets the size of the DB. The DB has six regional panels (the regions correspond to the regions used to elect members of the OSB Board of Governors).

One lawyer member in each region is the regional chair. The DB also has a lawyer state chair. A total of 68 people serve on the DB. DB members are volunteers and are not compensated for their services, although they are reimbursed for certain expenses in the performance of their official duties. All DB members serve three-year terms and they may seek reappointment. Members serving as the state chair or regional chairs serve in those capacities one year at a time and may be reappointed to those positions. Lawyer members of the DB must have been admitted to practice law in Oregon for at least three years. The state chair can reside in any region in Oregon; all other DB members must maintain their principal offices in their region.

3. How are DB members picked to serve as the judges in a particular formal disciplinary proceeding?
After formal proceedings are authorized by the SPRB, the regional chair of the region in which the accused lawyer: 1) maintains his or her principal office; 2) resides or 3) in which the offense is alleged to have been committed appoints a trial panel of two lawyers and one public member. Note that all three of the above are usually in the same region. One of the lawyers is appointed trial panel chair. Each regional chair probably uses a slightly different process, but regional members are canvassed regarding any conflicts they may have in serving in a particular case, and the regional chairs make the necessary appointments. A letter goes out to the bar and the accused (or his or her counsel) notifying them of the members of the trial panel. Both the bar and the accused have a period of time to challenge the service of the appointed members, and additional appointments are made if someone has been successfully challenged. Usually, the regional chair decides whether to sustain a challenge. If a regional chair is appointed to a trial panel, the state chair rules on any challenge to the regional chair. The state chair does not normally (but can) serve on trial panels. An accused lawyer is usually afforded a hearing in his or her region, and the trial panel members usually come from that region. DB members can be assigned to hear charges in regions other than their own.

4. What are the usual steps in the trial of a lawyer disciplinary proceeding?
Upon the SPRB deciding that a lawyer should be charged with one or more alleged ethics rule violations, the bar’s disciplinary counsel’s office prepares and serves a formal complaint on the lawyer. The lawyer has a certain period of time to file an answer. Often, our disciplinary counsel’s office will negotiate a stipulation for discipline with the accused and the matter never proceeds to a hearing.

When a regional chair receives notice of the service of a formal complaint on a lawyer in the region, the regional chair appoints a trial panel and informs the bar and the accused lawyer of the names of the panel members. As indicated above, the bar and accused lawyer can challenge the service of one or more appointees, and rulings are made on the challenges, and replacement trial panel members are appointed, as necessary.

Once the membership of the trial panel is determined, the Disciplinary Board clerk mails copies of the formal complaint and answer to the panel members, and the trial panel chair schedules the hearing, giving due consideration to the complexity of the matter and the availability of counsel and witnesses. The bar and the accused lawyer have certain discovery rights and discovery issues are ruled on by the trial panel chair.

The trial is held in the region in which the accused lawyer maintains his or her principal office, the accused resides or in which the offense is alleged to have been committed, although the accused lawyer can waive these requirements. Trials are held throughout the state, frequently in a meeting room at a county courthouse. The trial resembles a court trial, although the Oregon Rules of Evidence do not apply. Once the evidence has been presented, a transcript is prepared, and the trial panel goes about the business of drafting, finalizing and filing its findings of fact, conclusions of law and decision with the Disciplinary Board clerk.

5. What is the Disciplinary Board Clerk?
The Disciplinary clerk maintains the official records of all formal disciplinary proceedings on behalf of the Disciplinary Board. Pleadings and other documents are filed with the DB clerk similar to filing with a trial court clerk. The Bar Rules of Procedure govern the filing of documents with and the responsibilities of the DB clerk. The office of the DB clerk is at the OSB office in Lake Oswego.

6. What appeal rights do the parties to a lawyer disciplinary proceeding have?
Either the bar or the accused lawyer may seek Oregon Supreme Court review of a decision of the Disciplinary Board. Otherwise, the decisions of trial panels are final on the 61st day following the Disciplinary Board clerk’s receipt of a trial panel opinion. Thus, a trial panel can dismiss charges and reprimand, suspend or disbar an accused lawyer — and unless either the bar or the accused appeal the decision to the state supreme court, the decision is final. The Oregon Supreme Court considers all appeals de novo on the record of the proceedings before the trial panel.

7. Where can the decisions of the Disciplinary Board be found?
The bar publishes the Disciplinary Board Reporter on a yearly basis. Copies can be purchased from the bar. They are also available online from 1998 forward at http://www.osbar.org/publications/dbreporter/dbreport.html/. The reporter for 2005 has not been published as of the date this article was submitted for publication.

8. Do DB members receive any training?
The bar holds an annual Disciplinary Board conference in the spring of each year. The expenses of DB members are underwritten by the bar to encourage them to attend.

9. Has the bar ever considered transitioning from a volunteer-based adjudication process to one where full-time judges decide these cases?
Yes, a number of times and most recently last year. At that time bar staff urged the Board of Governors to replace the current volunteer DB system with three paid judges. The proposal was loosely based on the disciplinary judge systems in place in California and Colorado. After study and debate, the board chose to retain the current volunteer system. Two major concerns in establishing a paid judge system was cost and the loss of grass-roots participation by lawyers and members of the public in the adjudication stage of the formal disciplinary process.

10. If I am interested in serving on the DB, how would I go about applying for an appointment?
You should send a letter to Jane Gillispie, Member Services Department, Oregon State Bar, P.O. Box 1689, Lake Oswego, OR 97035. Ms. Gillispie is staff liaison to the Appointments Committee of the Board of Governors. Remember, lawyer members of the DB must be resident active members who have been admitted to the practice of law in Oregon for at least three years.

11. Who should I contact if I have further questions about the DB or the lawyer disciplinary process in general?
General questions about the operation of any aspect of the OSB disciplinary process can be directed to George Riemer at (503) 431-6405 or Sylvia Stevens at (503) 431-6359 in the OSB general counsel’s office.

2006 George A. Riemer

ABOUT THE AUTHOR
George A. Riemer is general counsel and deputy director of the OSB.


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