rule change on EOB credit enforcement
By Janine Robben
West Linn attorney Diane Gruber is mad as hell that she has to take classes on "elimination of bias" if she wants to be able to practice law in Oregon.
So mad that she promoted a petition to allow bar members to vote on whether the Minimum Continuing Legal Education (MCLE) requirement should be retained.
"I’ve attended seven diversity seminars in the last three years," Gruber told the bar’s House of Delegates in October, shortly before it voted down two resolutions that also concerned the requirement. "In the 22 hours I’ve spent at these CLEs, it would be a big stretch to say that the audience received one hour’s legal education. These CLEs were a political indoctrination, nothing more, nothing less."
The petition, which the bar received in January and the Board of Governors is putting to membership vote in April, is the latest development on the increasingly contentious "elimination of bias" requirement, whose opponents and proponents can only agree on one thing: That the vote on the petition will be advisory, only.
"I’ve been a member of the bar for 18 years, …(and) I haven’t heard this much buzz about any subject in the legal community since…we had to discuss the ethical rule about having sex with clients," House member Catherine Coburn said at the House’s October meeting. "There was a lot of buzz about that, but that was a lot more fun than this."
Obviously, that much "buzz" suggests that not everyone shares Gruber’s view.
"This was not something that was thought up over coffee," says former bar president Angel Lopez, who was on the 1992 Oregon Supreme Court task force that was the requirement’s genesis. "I, for one, was moved by the sentiment (expressed by people appearing before the task force) that not only are the bar and bench not reflective of the state’s minority population, but that the system simply didn’t care about minorities. I thought that this would be a positive way to address these feelings. Everyone should have the right not only to go into court, but to come away feeling that they’ve been treated fairly."
Yet another view is expressed by bar members who don’t see the requirement as an "either-or" proposition.
"I did not intend, and did not understand my House colleagues to have intended, that the bar maintain the status quo," House member Peter Shepherd wrote then-bar president Nena Cook, following the defeat of resolutions at the October meeting.
The resolutions had called for deletion of elimination of bias as a mandatory requirement or for a membership-wide vote on the issue.
"During the vigorous e-mail debate preceding (the) meeting, and during debate at the meeting itself, I heard at least two calls for change from supporters and opponents of the resolutions," Shepherd wrote Cook. "I hope that the board heard the same things and that it will act on them. …Given the importance of dissolving systemic barriers to full and fair participation of all Oregonians in the justice system…the bar should subject such programs to heightened quality control scrutiny before accrediting them."
The frustration and passion of the debate before and after the October 2005 House of Delegates meeting has not been lost or ignored by the Board of Governors, says Mark Comstock, board member and chair of the board’s Policy and Governance Committee.
"The quality of elimination of bias CLEs was a main topic of the board’s November planning workshop," says Comstock. The Policy & Governance Committee adopted as its priority action item a review of the quality of EOB CLE programs to further address the utility of the EOB MCLE requirement to the practicing bar."
THE HISTORY OF THE MCLE RULE
The elimination of bias requirement’s history began in 1992, when the Oregon Supreme Court established a Task Force on Racial/Ethnic Issues in the Judicial System under the direction of then-Justice Edwin J. Peterson.
The task force’s 18 members included Lopez — a criminal defense attorney who later served as bar president — and then-deputy attorney general Jack Landau, now a judge on the Oregon Court of Appeals.
In 1994, after conducting surveys and public hearings (see Questions and Answers sidebar), the task force made 72 recommendations.
These included a recommendation that the bar and the Oregon Supreme Court require all lawyers to complete at least three hours of "cross-cultural diversity training" during each reporting period.
"Many of the problems recounted in this report stem from cultural differences between minorities and nonminorities," the task force wrote in its report. "The dominant culture of this state and nation is reflected in its courts. Largely nonminority judges and court staff do not understand the cultures of minorities who appear in the courts. Conversely, minorities — many of whom come from countries with different justice systems — do not understand the Oregon courts in which they appear. This lack of understanding is not limited to minorities who speak little or no English. It is just as pervasive in Native-American and African-American cultures, in which English is the dominant language."
Following the release of this report, the Oregon Supreme Court established an eight-member committee, under the direction of then-Court of Appeals Judge Paul De Muniz, to oversee implementation of the recommendations.
In 1996, this "Implementation Committee" issued its own report, which concluded that "In the context of Oregon’s court system, explicit manifestations of racial bias rarely occur, and when they do, are isolated events."
"Rather," the report goes on, "as the Task Force discovered, something more pervasive is at work: institutionalized bias…a residue of beliefs that continue to linger in the subconscious of our society, perpetuate negative stereotypes and accordingly affect people’s actions without their knowledge."
This conclusion would not have surprised Darrell Millner, a professor of Black Studies at Portland State University who specializes in the racial history of Oregon and the Pacific Northwest.
"It’s important to understand when Oregon became part of the American experience," Millner told the Bulletin. "Many people who came to Oregon wanted to avoid the kind of racial conflict they saw in the East. One way to avoid that conflict is to have only one race.
"Today, most people consider that law should be racially neutral, fair and even-handed," says Millner. "But that assumption was not always in place. In 1844, the provisional government made it illegal for blacks to live in Oregon. They were subject to being arrested every six months and publicly whipped 39 times.
"In 1857, it was imbedded in the Oregon Constitution, Article 1, Section 35, that black people couldn’t legally and constitutionally reside in Oregon. They couldn’t engage in contracts. They couldn’t use the court system."
Another law — Oregon’s ban on interracial marriage, which in 1866 was extended to bar whites from marrying anyone who was one-quarter or more Chinese or Hawaiian or one-half Native American — remained in effect until 1951.
Peter Shepherd, the House member who wrote then-bar president Cook following the October meeting, tracks the existence of such laws by generation.
"My great-grandparents were alive when Dred Scott held that blacks were property," Shepherd told the Bulletin. "My grandmother would have been living in the time when people of Japanese descent couldn’t own property in Oregon. My mom was a public school student in Vallejo, Calif. in 1942, when her Japanese-American classmate was interned in a camp that I visited this summer. It seems to me that a CLE that informed me and other lawyers of these historical facts would be very illuminating."
THE BEGINNING OF MCLE
The task force’s recommendation of mandatory "cross-cultural diversity training" worked its way through various committees — including the Implementation Committee — for seven years.
Finally, in January 2001, the bar’s Board of Governors approved an amendment to the MCLE rules that would — in the words of a May 2001 Bulletin article — create "a new category" of continuing legal education requirement.
Prior to this amendment, Oregon lawyers were required to obtain 45 hours of continuing legal education every three years. Six of these had to be on "ethics."
The amended rule required that another three hours "pertain to the role of lawyers concerning racial and ethnic issues, gender fairness, disability issues and access to justice."
The amendment, which came to be known as the "diversity requirement," was adopted by the Oregon Supreme Court at a public meeting in March 2001. It went into effect the following month, for the reporting period ending on Dec. 31, 2004.
But the new requirement quickly ran into problems.
"When accrediting programs, we interpreted this rule very narrowly," says former MCLE committee member and 2005 committee chair Laura Kosloff. "Needless to say, this limited the number of programs that qualified for elimination of bias credit."
In addition, says Kosloff, there was "much confusion" among bar members and sponsors about what types of programs qualified for the credit.
As a result, in March 2004, the Oregon Supreme Court approved an additional amendment to the MCLE rules in which the "diversity requirement" was now described as "elimination of bias."
The court also added language, to another rule, to define elimination of bias programs as those "directly related to the practice of law and designed to educate attorneys to identify and eliminate from the legal profession and from the practice of law, biases against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation."
According to Kosloff, "Approval of this revised rule broadened the scope of programs that qualified for elimination of bias credit. However, substantive law programs…did not qualify for elimination of bias credit at that time."
Then, in January 2005, the Board of Governors approved a MCLE regulation that made substantive law programs eligible for the credit as long as they relate to bias issues.
"Approval of this regulation broadened the scope even more," says Kosloff.
As a result of these changes, the number of elimination of bias programs approved by the MCLE program has gone from 38 in early 2001 to 285 in late 2005: The spreadsheet of programs that have been approved during that time period runs 38 pages. Approved presentations have ranged from "The Laramie Project" — a play about the murder of a homosexual man in Wyoming — to lawyers and the deaf community.
HOD MEETING AND PETITION
In October 2005, Brookings attorney and House member Gary Georgeff presented two resolutions dealing with the elimination of bias requirement to the bar’s House of Delegates, one to delete the requirement outright, the other to put the question to a vote of the bar’s entire membership.
In presenting his resolutions, Georgeff — whose father immigrated to the United States from Eastern Europe — said that he rejects discrimination and bias "unequivocally."
"But," he told the Bulletin, "I can be a person of good will and believe that this is something that people should not be lectured about."
Liani Reeves, another House of Delegates member, strongly disagreed with Georgeff. "This is undoubtedly a divisive, isolating issue," Reeves — a Korean-American woman who has been a bar member since 2001 — told the house. "(But) when people sit around and talk about how isolated they feel at these CLEs, that’s how I feel most of the time."
"I felt it (bias) during the hiring process in the private sector, because I wanted to be a litigator, and there are a lot of stereotypes around Asian women," Reeves continued in a subsequent interview with the Bulletin. "People didn’t come out and say, ‘You’re an Asian female,’ but they flat-out told me I was too passive to be a trial attorney. I’m not passive. I don’t think that it is too much to ask for people to spend two to three hours a year to consider these issues that I have to deal with every day. As a person of color, I don’t have a choice."
What would have happened next if Georgeff’s point of view had prevailed at the House meeting is debatable.
Under state law, the House — which replaced the bar’s "town hall" style of meeting in 1996 — has the power to approve "rules of professional conduct" that have been formulated by the Board of Governors. ORS 9.490(1). However, under another provision of state law (ORS 9.139(3)(c)), it does not have the power to direct, modify or rescind any board decision that is subject to control, approval or review by the Oregon Supreme Court, and the MCLEs rules are reviewed and adopted by the court.
As it turned out, that potentially sticky legal wicket was avoided when both of Georgeff’s resolutions were defeated.
Georgeff then drafted the petition to ask the board to submit, to a vote of the bar’s membership, the following question:
"Should the rules of professional conduct …be amended to provide that no member…shall be subject to suspension, or otherwise be subject to any sanction, for failing to complete or report any MCLE credit hours on the subject of elimination of bias?"
The petition, which was signed by the necessary percentage of active bar members, was received by the bar in January.
"The petition pretty much circulated itself," says Georgeff. "Before I went to (the House meeting), several OSB members suggested that I come up with a back-up plan if we were not successful in getting either of the resolutions passed. I drafted the petition and brought it with me to Salem. The day before the meeting, I attended the (elimination of bias) CLE put on by the OSB. The first speaker began by asking how many persons in attendance were there involuntarily. More than half of the group raised their hands. This appeared to be fertile ground."
At its February meeting in Medford, the board agreed to call an advisory vote of the bar membership in April (see related articles).
If the question passes, the matter won’t end there, since the vote’s effect on the Oregon Supreme Court -- which approved the rule -- will be purely advisory.
And on that one point, says Georgeff, he and the bar are in complete agreement.
ABOUT THE AUTHOR
Janine Robben is a frequent contributor to the Bulletin. She has been a member of the Oregon State Bar since 1980.
© 2006 Janine Robben
HOW THE ELECTION WILL WORK
A membership-wide vote on whether MCLE rules should be amended so that lawyers are not subject to sanction for failing to complete the elimination of bias requirement is scheduled for April. The vote will be conducted in conjunction with the upcoming House of Delegates elections and the judicial polls. Voting will be conducted electronically for active bar members who have valid e-mail addresses registered with the bar, or by paper ballot for those who do not have such addresses or who request a paper ballot by March 17, 2006. The paper ballots will be mailed on March 30. All voting ends at 5 p.m. on April 14. The outcome will be announced the following week.
What members are saying about elimination of bias
To faciliate discussion about the elimination of bias MCLE credit and the upcoming membership vote, the Oregon State Bar has created an online voter pamphlet and discussion forum, located in the Members Section of the bar’s website, www.osbar.org.
And here, the Bulletin offers other opinions on various aspects of the subject, gleaned through interviews with bar members and in the record on the debate on the requirement that took place at last fall’s annual House of Delegates meeting.
Is the information provided at elimination of bias CLEs useful to attorneys?
"I didn't learn how to eliminate bias in Oregon courts today, but I did learn that I am a horrible person, in fact, for being white, and that, in law, people of color are good." —Anonymous evaluation of the CLE "Eliminating Racial Bias in Our Justice System."
"Bad idea to open up the floor to comments. There are a lot of knotheads in the OSB." —Anonymous evaluation of the same CLE.
Is elimination of bias an appropriate topic for mandatory continuing legal education?
"…[M]aking these kind of courses mandatory undermines the basic quality of the message… [T]he Oregon State Bar is a licensing body, a non-voluntary organization for anybody who wants to practice law. It should not be used, ever, as an agenda for articulating a political or social program. When this program was imposed, it seemed like a good idea to the people who wanted to do it.… Perhaps the next time around, it's going to be somebody wanting you to take a course of Biblical values, family values, creationism. You may laugh at that, you might even sneer, saying the Constitution will protect you. And does the Constitution do that? Didn't we just have a president who adopted a National Day of Prayer, which seems to this agnostic to violate the Establishment Clause, without a murmur? Don't we have an attorney general who believes that torture is OK?" —Gary Georgeff, speaking before the House of Delegates
"I remember in my first job interview in rural Georgia, I was asked how I would feel about the last bar meeting, when naked ladies could jump out of the cake. I came here to Portland and interviewed at a large law firm, and was told point blank [that]… no woman lawyer was going to be a litigator in their firm. So memories are short and attitudes shape over time, and we've become a subtle group where we no longer are as overt as we were." —Janet Lee Hoffman, Oregon State Bar member since 1978, speaking before House of Delegates.
"You can't just assume that everybody out there is like you. Once you become aware, you can do a better job of identifying the issues that are important to them. I don't think it is too much to ask Oregon lawyers to spend a few hours every few years listening to people from other cultures. I guess I feel pretty strongly about it." —Geoff Bernhardt, presenter of a substantive law "elimination of bias" CLE on cultural factors in end-of-life decision-making, Bulletin interview.
Should the requirement be eliminated?
"It's not perfect.… But we should not send a message that racism is over, that we don't need this, because that's not the case." —Antonio Porras, speaking before the House of Delegates.
"Maybe if it had been handled in a different way from the very beginning, the reception would have been more positive. But the way it's gone, I think we should just count it up as a failed experiment and let it go for the time being." —Catherine Coburn, speaking before the House of Delegates.
"What are we going to do here if we have a vote and only 10 percent of the people vote, and it's two percentage more from the Portland area than from down in the valley, and then we're going to pretend that somehow or another that represents the will of the bar?" —Robert Browning, speaking before the House of Delegates.