Oregon State Bar Bulletin APRIL 2013
Enforcing the Rules:
A Look at Lawyer Discipline in Oregon
By Jeff Sapiro
Oregon lawyers may have an understandable desire to stay as far away from the lawyer discipline system as possible. However, a desire to avoid discipline is no reason to be uninformed on the topic, and we have had a number of requests recently to remind Oregon lawyers how the system works. So, here it goes.
The lawyer discipline system is governed by provisions in ORS Chapter 9 and the Bar Rules of Procedure (BRs) approved by the Oregon Supreme Court. (Bar Rules can be found here) The Oregon State Bar is responsible for the initial intake, investigative and prosecutorial functions within the system. The adjudicative function is carried out at the trial level by members of the Disciplinary Board, who are Oregon Supreme Court appointees, and by the court itself on appeal.
Investigation and Probable Cause
Client Assistance Office. All inquiries and complaints (telephone, letter, electronic and in-person) about Oregon lawyers are first reviewed by the bar’s Client Assistance Office (CAO), which handles initial intake and screening. Many complaints and allegations brought to the bar’s attention, even if true, do not involve ethical misconduct. CAO staff dismisses those matters, providing guidance as appropriate to complainants about other options and resources, and to lawyers about how to deal with minor client concerns or communication problems before they ripen into a disciplinary problem. Under the rules, complainants have a right to appeal a CAO dismissal. BR 2.5(c).
For allegations that do implicate rules of professional conduct, CAO staff asks the lawyer to respond and may also gather additional information from other sources. Ultimately, the Client Assistance Office determines whether there is sufficient evidence to support a reasonable belief that misconduct may have occurred. BR 2.5(b). If so, CAO refers the matter to Disciplinary Counsel’s Office for a more in-depth investigation. In a typical year, CAO will review roughly 1500 matters, referring 15-20 percent to disciplinary counsel.
Disciplinary Counsel’s Office. Disciplinary Counsel’s Office (DCO) investigates all written complaints referred to it by the Client Assistance Office. DCO also may initiate an investigation without a written complaint, typically based on civil or criminal court filings, police reports, discipline imposed on a lawyer in another jurisdiction, media reports or other sources. BR 2.6(a) and 2.7. In addition, notices from financial institutions of overdrafts on lawyer trust accounts are investigated by disciplinary counsel. See RPC 1.15-2(i).
Lawyers are asked to respond to the allegations made about them and to answer specific inquiries about their conduct. Both the complainant and the lawyer are given the opportunity to comment on written material submitted by the other. Failure to respond to an ethics inquiry is an independent ground for discipline under RPC 8.1(a)(2), and lawyers have been sanctioned for this violation even if all the substantive allegations against the lawyer were found to have no merit. See In re Hereford, 306 Or 69, 756 P2d 30 (1988);In re Miles, 324 Or 218, 923 P2d 1219 (1996). Remarkably, failing to respond to an ethics complaint is the most easily avoidable disciplinary violation, but continues to be one of the most common, year-in and year-out.
At the conclusion of its investigation, disciplinary counsel determines if probable cause of misconduct exists. If there appears to be probable cause, DCO reports on the matter to the State Professional Responsibility Board (SPRB). BR 2.6(c). Complaints lacking in probable cause are dismissed, with notice to complainants that they have a right to appeal a staff dismissal to the SPRB. BR 2.6(b).
Investigations are not deferred merely because a complainant or a witness becomes uncooperative, a civil dispute between the complainant and lawyer has been settled or because related civil or criminal proceedings are pending. BR 2.8. However, lawyers subject to a concurrent criminal investigation may invoke a constitutional privilege and decline to provide incriminating information to the bar. Spevack v. Klein, 385 US 511, 87 SCt 625, 17 LEd 2d 574 (1967).
Local Professional Responsibility Committees (LPRCs). Disciplinary counsel assigns some investigations to LPRCs, typically when a lawyer does not respond to initial staff inquiries. There are seven LPRCs around the state, made up of unpaid volunteer lawyers. See, ORS 9.532; BR 2.3(a). The committees are asked to complete investigations within a set time period and report back to disciplinary counsel. LPRCs have subpoena power to aid them in investigations. Disciplinary counsel also is authorized to utilize special investigators other than LPRCs to investigate matters. BR 2.2. This is done occasionally when the complexity or cross-jurisdictional nature of a complaint requires it.
State Professional Responsibility Board (SPRB). The SPRB is comprised of eight lawyers representing regions of the state and two nonlawyers, serving four year terms as unpaid volunteers. The board acts like a grand jury in deciding whether disciplinary charges are warranted. ORS 9.532; BR 2.3(b). The SPRB meets monthly either in person or by conference call. At each meeting, board members review investigative reports and complaint files distributed to them in advance, discuss each matter and vote on appropriate action. Although lawyers subject to disciplinary proceedings may form a belief that bar action is staff-driven, the SPRB is an extremely engaged, deliberative body that provides the element of peer review to the charging phase of the system.
Options available to the SPRB, under BR 2.6(c), include:
- Referring the matter back to disciplinary counsel or to an LPRC for further investigation;
- Dismissing the matter if probable cause does not exist to believe misconduct has occurred. There is no further appeal from an SPRB dismissal, although the board may reconsider a matter if presented with new evidence. BR 2.6(e)(1);
- Issuing a letter of admonition to a lawyer if the SPRB believes a violation occurred but was not of a serious nature. Admonitions are not considered formal discipline. In re Cohen, 330 Or 489, 8 P3d 953 (2000). A lawyer may reject an admonition letter, in which case a formal disciplinary proceeding is commenced. BR 2.6(c)(1)(B). Note that if a lawyer rejects an admonition and is found at the subsequent hearing to have committed an ethics violation, the opportunity for an admonition no longer exists; an admonition is not a sanctioning option in a formal disciplinary proceeding. See BR 6.1(a). The SPRB issues roughly 40-50 admonitions a year;
- Authorizing a formal disciplinary proceeding when there is probable cause to believe misconduct has occurred. In a typical year, around 100 investigations will lead to formal charges. After charges are authorized, the SPRB may rescind them only when presented with new evidence or legal authority which establishes that the decision to prosecute was incorrect. BR 2.6(e);
- Authorizing staff to negotiate and enter into a diversion agreement with a lawyer. Only matters involving minor misconduct are eligible for diversion, and the misconduct must stem from an apparent cause that is likely to be dealt with successfully through a remedial program. As a condition of diversion, the lawyer must stipulate to a set of facts and agree that the stipulated facts will be deemed true in the event the lawyer fails to comply with the diversion agreement and a disciplinary trial later becomes necessary. If diversion is successfully completed, the complaint is dismissed. BR 2.10; and
- Referring a seemingly impaired lawyer to the State Lawyers Assistance Committee (SLAC). If there is probable cause that the impaired lawyer committed misconduct, the referral to SLAC will be in addition to, not in lieu of, disciplinary action.
The SPRB also decides when it is appropriate to petition the Oregon Supreme Court for immediate action against a lawyer due to: the potential for substantial continuing harm to the public while a disciplinary proceeding is pending (BR 3.1); a lawyer’s mental incapacity (BR 3.2); a lawyer’s criminal conviction (BR 3.4); or the imposition of discipline upon the lawyer in another state. BR 3.5.
Bar Prosecutions: Trial Level
Counsel. After formal charges are authorized by the SPRB, Disciplinary Counsel’s Office may, but does not always, appoint volunteer trial counsel to work with DCO staff in preparation and trial of the case. BR 2.1(a). Lawyers accused of misconduct also should obtain counsel. Several Oregon lawyers have developed the defense of disciplinary matters as a practice area. The bar also maintains a list of lawyers who have expressed an interest in providing pro bono advice to lawyers under investigation or formal charge.
Pleadings. Disciplinary proceedings are initiated by a formal complaint, which is the charging instrument. BR 4.1 and BR 12.1. The complaint is prepared by Disciplinary Counsel’s Office and is filed with the bar’s disciplinary board clerk. BR 4.1(b). The SPRB may consolidate any number of authorized charges against the same lawyer in one proceeding. The SPRB also may consolidate factually related complaints against two or more lawyers for hearing before one trial panel. BR 4.1(d).
An accused lawyer has the opportunity to file an answer to the complaint. General denials are not allowed. BR 4.3(d). Neither are counterclaims. In re Kluge, 332 Or 251, 258-59, 27 P3d 102 (2001).
Amendments to the formal complaint and answer are liberally allowed but time is given the opposing party to prepare to meet new matters alleged. BR 4.4(b). Motion practice is limited to the equivalent of a motion to make more definite and certain. BR 4.4(a).
Trial Panels. Members of the disciplinary board, appointed by the state supreme court, sit in panels of three (two lawyers, one nonlawyer) and are appointed for each case by a regional chairperson. BR 2.4; ORS 9.534. Challenges, one peremptory and an unlimited number for cause, may be exercised against members of a trial panel. BR 2.4(g). The panel, with an appointed chairperson, rules on all questions of procedure and evidence and is responsible for promptly bringing the matter to hearing. Hearings are to take place within 63 to 182 days after the panel receives the pleadings from the disciplinary board clerk, subject to extensions not to exceed 56 days in the aggregate. BR 2.4(h); BR 5.4.
Pre-hearing conferences are optional, held at the request of either the bar or an accused lawyer, and are designed to narrow the issues for trial and to further explore the possibility of settlement. BR 4.6. The parties also may employ the services of an outside mediator to determine the potential for, or assist the parties in negotiating, a settlement of issues in dispute. Mediation is voluntary; both parties must agree to participate for a mediation to occur. BR 4.9.
Discovery. Discovery is limited to requests for admissions, requests for production and depositions. BR 4.5(b). Disputed discovery issues are resolved by the trial panel chairperson. In addition to their discoverability, disciplinary files and records are, subject to limited exceptions, open to disclosure under the Oregon Public Records Law. ORS Ch. 192; BR 1.7(b); OSB Bylaw 18.103-18.104. Sadler v. Oregon State Bar, 275 Or 279, 550 P2d 1218 (1976); State ex. rel. Frohnmayer v. Oregon State Bar, 307 Or 304, 767 P2d 893 (1989); Kluge v. Oregon State Bar, 172 Or App 452, 19 P3d 938 (2001).
Hearings. In disciplinary hearings, evidence possessing “probative value commonly accepted by reasonably prudent persons in the conduct of their affairs” is admissible. BR 5.1. This standard differs from that in the Oregon Evidence Code, which does not apply to disciplinary proceedings. In re Barber, 322 Or 194, 904 P2d 620 (1995).
The bar has the burden of proof under a “clear and convincing” standard (BR 5.2), which means that the truth of the facts asserted is highly probable. In re Morrow, 297 Or 808, 688 P2d 820 (1984). The accused lawyer is presumed innocent until proven otherwise. In re Jordan, 295 Or 142, 665 P2d 341 (1983).
Venue may be in the county in which the lawyer practices or resides, in which the offense is alleged to have occurred, or elsewhere with the consent of the lawyer. ORS 9.534(5); BR 5.3(a). Subpoenas are available to compel the attendance of witnesses. BR 5.3(b).
Due process rights afforded an accused lawyer include reasonable written notice of the charges, a reasonable opportunity to defend against them, the right to retained counsel, the right to examine and cross examine witnesses and the right to appear and testify. ORS 9.534(2). There is no constitutional right to appointed counsel in lawyer disciplinary proceedings. In re Harris, 334 Or 353, 49 P3d 778 (2002).
Evidence relevant to sanction may be heard by the trial panel but may not be considered until after the panel decides whether a violation was committed by the lawyer. Separate mitigation or aggravation hearings regarding sanctions are permitted but rarely held. BR 5.7.
Occasionally, disciplinary matters go by default without participation by the accused lawyer. BR 5.8. Under those circumstances, a trial panel may deem the factual allegations of the formal complaint to be true. In re Staar, 324 Or 283, 924 P2d 308 (1996). The panel then must determine whether the facts deemed true constitute the rule violations alleged. In re Koch, 345 Or 444, 198 P3d 910 (2008). If so, the panel moves on to consider the appropriate sanction.
After hearing and the settling of the transcript, the trial panel must render its written decision within 28 days, subject to extensions. Dissenting opinions also may be filed. BR 2.4(i)(2).
Sanctions. At the direction of the Oregon Supreme Court, disciplinary board panels look to the ABA Standards for Imposing Lawyer Sanctions and Oregon case law in determining dispositions. See In re Leonhardt, 324 Or 498, 930 P2d 844 (1997). The ABA Standards examine four criteria: the duty violated by the lawyer (owed to a client, the public, the legal system or the profession); the mental state of the lawyer (intentional, knowing, negligent or strict liability); the extent of injury (actual, potential or none); mitigating and aggravating factors (examples include prior disciplinary history, motive, number of offenses, level of cooperation, restitution, experience in practice, character or reputation).
Disciplinary dispositions and sanctions recognized in Oregon, set forth in BR 6.1, include: dismissal (two in 2012); public reprimand (17 in 2012); suspension from 30 days to five years (20 in 2012); suspension stayed in whole or in part pending a term of probation (three in 2012); and disbarment (two in 2012), which is permanent per BR 6.1(e). Restitution also may be required.
Dispositions without trial. Lawyers subject to disciplinary investigation or prosecution may resign “Form B.” BR 9.1; BR 12.7. This resignation “under fire” is similar to disbarment in that lawyers who resign Form B are not eligible for reinstatement. BR 9.4. Thirteen lawyers resigned Form B in 2012.
Cases also can be resolved through stipulations for discipline and no-contest pleas when there is no dispute over material fact and the parties agree on an appropriate sanction. BR 3.6. These settlements between a lawyer and the SPRB must be approved by the disciplinary board (for sanctions involving a six-month suspension or less) or the Oregon Supreme Court (for greater sanctions). BR 3.6(e). If the disciplinary board or the court rejects a stipulation or no-contest plea, the case proceeds to hearing.
Bar Prosecutions: Appellate Level
There is no automatic review of disciplinary proceedings by the Oregon Supreme Court. All trial panel decisions are final unless either the bar or the accused lawyer seeks state supreme court review within 60 days. If review is requested by either party, the court must review the case. The SPRB decides for the bar whether to seek review. Disciplinary Counsel’s Office represents the bar on appeal.
Upon receipt of the record, the Oregon Supreme Court establishes a briefing schedule for the parties. ORAP 11.25; BR 10.5. Oral argument follows. Review in the supreme court is de novo. ORS 9.536(3); BR 10.6. It is not uncommon for the court to disagree with trial panels on the facts, law or sanctions. After decision, costs and disbursements in disciplinary matters are governed by BR 10.7 and ORAP 13.05.
The legal profession in Oregon has taken seriously its commitment to enforcing ethics standards and protecting the public with a discipline system that is nationally recognized for its openness, nonlawyer input and streamlined framework. The system is supported by dozens of dedicated volunteers and equally dedicated staff.
By the time you read this, I will have left my position as the bar’s disciplinary counsel, having held the post since the fall of 1988. It has been a privilege to work with all the volunteers and staff, and to serve the public and the legal profession over the years.
ABOUT THE AUTHOR
Jeff Sapiro was OSB disciplinary counsel and director of regulatory services from 1989 to February 2013. A more complete description of Oregon’s discipline system is found in Chapter 16 of The Ethical Oregon Lawyer, an OSB publication available to bar members through BarBooks on the OSB website.
The Oregon State Bar welcomes John S. Gleason as the new OSB disciplinary counsel and director of regulatory services. He was formerly regulation counsel for the Colorado Supreme Court. In February, he received the National Organization of Bar Counsel 2013 President’s Award, honoring his many years of dedication and noteworthy contributions to the legal profession. A fuller profile of Gleason will appear in an upcoming issue of the Bulletin.
© 2013 Jeff Sapiro