|Oregon State Bar Bulletin MAY 2007|
A Good Start
I write in response to the article "The Case for Sustainability" by Janine Robben in the February/March 2007 issue.
Ms. Robben quotes from Office Max account executive Becky Schindler,
Lindsay, Hart, Neil & Weigler administrator, Kris Thomsen, and Stoel Rives
administrative services manager, Phil Moran, with respect to the use of recycled
paper. California Rules of Court (Rules 2.101 and 10.503) require the use of
recycled paper. If Oregon lawyers "embrace green products and practices," a
similar to California’s rules would be a good start.
Peter M. Appleton
Mean What You Say
I enjoy the new Legal Writer column and have learned a lot from it. However, I think Joan Malmud’s piece on "Concise Writing" in the February/March 2007 Bulletin contains two errors, one legal and one grammatical.
The legal error occurs in stating that the following two sentences have the same meaning:
1. "Rather, in this Circuit, courts equate futility with a litigant’s inability to present his or her claim for administrative review."
2. "Rather, this Circuit equates futility with a litigant’s inability to obtain administrative review."
Sentence 1 implies that the district courts (i.e., the courts within the circuit) have interpreted "futility" in a certain way. Sentence 2 implies that the circuit court itself has interpreted "futility" in this way. This distinction is important because a district court is not bound by the decisions of other district courts (inside or outside of the circuit), but is bound to follow the decisions of the circuit court. Hart v Massanari, 266 F 3d 1155 (9th Cir. 2001) ("A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue."). If the circuit court has not in fact ruled on "futility," sentence number 2 is incorrect. Concision must not trump accuracy.
The grammatical error occurs in the sentence, "Plaintiffs claim may be dismissed only if she can clearly prove no set of facts that would entitle her to relief." Clearly proving no facts is analogous to clearly speaking no words. Similarly, I don’t think we would say, "The deaf man can clearly hear no sounds." We might say, "Clearly, the deaf man can hear no sounds," but this seems like a lot of effort to cut three words from a sentence.
I guess the lesson of these examples is that sometimes small words do matter. As we slice and dice our prose, we should make sure we still mean what we say.
Jeffrey W. Knapp
Discipline Processes, Outcomes Have Been Fair
Recently, there has been significant discussion among attorneys related to discipline by the Oregon State Bar, from Craig Colby’s letter to the editor (February/March 2007), as well as regarding the decision to publish suspensions of attorneys up through 1991 on the OSB website.
In the years that I have read the "Discipline" section of the Bulletin, I often found myself disagreeing with the sanctions that had been issued. Sometimes they seemed too harsh, other times too lenient. That, and the experiences of both myself and several close colleagues, lead me to decide to stop complaining and do something to fix what I felt was a troublesome problem.
For several years I have volunteered as bar counsel, assisting the disciplinary counsel’s office in its cases. Before agreeing to do so, I obtained assurances that if I believed the proposed sanctions were too strict (or lenient), my opinion would carry weight. My experience thus far has borne this out. In the cases I have handled I believe the process and the outcomes have been fair (although admittedly, the attorneys involved might disagree).
There will always be criticism of this process. Sometimes it may well be justified. I recommend attorneys dissatisfied with the decisions they see work to make it better by volunteering. As a practicing attorney your insights about the day-to-day practice of law can be invaluable. Not only will you be doing your part to ensure your colleagues are getting a fair shake, but the knowledge gained can help you in your own career.
A Bar Card With Meaning
For about the past 10 years, I have penned a personal letter of congratulations and request to the incoming president. The congratulation is for obvious reasons: the well-earned recognition of the president’s obvious skills and leadership. This year I add the membership to my note.
Your January cover story highlighted incoming president Albert Menashe’s bootstrap story of a second-generation immigrant Turkish family member to a highly respected and successful practitioner. The story takes us through his days as an Army cadet through his term as an Army officer, to law school and beyond. Menashe is a pro tem judge who is highly regarded by the local judiciary and bar in my community.
So, once again, I congratulate the incoming president for what is so far a job well done. I also have a request that for the last 10 years has fallen on deaf ears.
Each year the bar has controversy regarding military advertisement, diversity issues, mandatory CLE, pro bono matters, and the list goes on. Members and officers differ over "Are we doing enough?" and "What more can we do to serve the public?" There is one effort, however, that would serve almost all members and would have a real bottom-line savings to our clients in millions of dollars.
Each year I ask the incoming president to actively research, review and come up with a common access card for attorneys entering courthouses statewide that would allow active, practicing members of the bar entry to courts without the usual security process.
I have two cards from two different counties that allow me to bypass common security procedures in two of the courthouses in those counties. I go to courthouses in other counties and have to wait at length with other members of the bar and the public to ensure that I do not have a pocketknife in my shoes or that my laptop is not stuffed with Semtex.
As a member of the Oregon State Bar, I have passed background checks that permit me to maintain client funds and have a sufficient measure of trust as an officer of the court. As a current officer in the United States Army Reserve, I have a common access card that reflects a security clearance so that I am not subject to a search each time I enter a secured building within the entire U.S. Department of Defense system.
President Menashe can reflect on his career as an Army officer and understand the need for security, but also some measure of common sense that allows those with previously established credentials to bypass the laborious security procedures at the entrance of many courthouses within our state boundaries. If the president could do one thing for the membership that would benefit the most, it would be to work with the chief justice and sheriffs’ association to establish a bar card that doesn’t look like it came out of a cereal box and would actually have some worth and meaning to it.
Lawrence K. Peterson
A caption in the article "Uncharted Waters" (page 22, April 2007) mistakenly identified one of the Oregon lawyers representing detainees at Guantanamo, Cuba. Portland lawyer Sam Kauffmann is the person standing between federal defender Bob Weaver and interpreter Khaled Furani. Kauffmann also provided the photograph. The Bulletin regrets the errors.