Oregon State Bar Bulletin FEBRUARY/MARCH 2015
Let’s Lose the ‘Remorse’
A semiregular feature of the results of disciplinary proceedings reported in the Bulletin is that the accused “expresses remorse” for what he or she has done. It is far past time that the bar abandon this language as antiquated, imprecise and possibly out of proportion to the offense committed. The language is antiquated because it borrows from the world of medieval theology, and it reflects a time when legal language implicated the motive in the description, such as in “depraved heart murder” or “a malignant and abandoned heart.”
Remorse, though having a secular import, more easily moves in the world of theology. It also is an imprecise term, since it covers the waterfront from abject and tearful apology, to curt recognition of wrong.
There are many other linguistically more useful, less morally freighted and more precise terms to express what the bar wants to describe.
Finally, the term may be disproportionate to the offense committed. The only use of the term in the last few weeks in public discourse, for example, has been the Emperor of Japan’s “expressing remorse” for the Japanese role in World War II. Hardly the stuff of bar disciplinary proceedings.
Why don’t we say it in today’s terms? The accused “admitted error” or “apologized for his/her wrong” or “expressed regret” or “took responsibility” or many other ways to say what we mean. Keeping remorse in our legal armamentarium bespeaks an unwitting or unreflective commitment to a world that has long passed away.
William R. Long, Salem
On Eliminating or Broadening LRAP
I’m very glad that OSB President Rich Spier wants to re-examine all the OSB programs and functions (“Proud to be An Oregon Lawyer,” January 2015).
I suggest starting with either eliminating the Oregon State Bar Loan Repayment Assistance Program (LRAP) or opening it to all new attorneys on the basis of financial need, rather than limiting it to “public defenders, district attorneys and attorneys working for civil legal service providers.”
At one time, salaries in those positions might have been considered “meager,” but the reality is that, today, the winners in the job market are those who, like public defenders, district attorneys and civil legal service providers, have regular pay and benefits — not to mention exemption from paying their own PLF premiums. I know many struggling solos with crushing student loans who must wonder why they are being taxed in their dues to help pay down the student loans of those with whom they would trade places in a nanosecond.
John Gear, Salem
Sylvia Stevens, OSB executive director, responds: I appreciate your interest in LRAP and want to provide you with some information about the program.
• The statement of purpose adopted by the BOG when LRAP was created says: “The Oregon State Bar recognizes that substantial educational debt can create a financial barrier which prevents lawyers from pursuing or continuing careers in public service law. The Oregon State Bar’s program of loan repayment assistance is intended to reduce that barrier for these economically-disadvantaged lawyers, thereby making public service employment more feasible.”
• Over the past eight years, 208 applications have been received and 67 public service lawyers have been granted loans.
• Of those 67, only five were deputy district attorneys, two from Coos County, one from Jefferson County, one from Washington County and one from Douglas County.
• In 2013, the average applicant debt was $100,985 and the average salary was $44,500. In 2014 the average debt was $138,074 and the average salary was $45,146.
• Department of Justice employees, court clerks and other county, state and federal employees are not eligible for the program.
• The salary cap of $65,000 encompasses most legal services attorneys.
We certainly understand that many lawyers (especially those in solo practice) struggle with establishing their careers and paying enormous debt, and we try to ease that burden where we can. However, the bar’s mission includes promoting access to justice, and the Board of Governors (and the House of Delegates, which voted to increase the membership fee to establish the program) recognize that retaining legal services lawyers is critical to justice for low income clients.
Toward Equal Footing
I read with interest Roger Ley’s response to Kris Olson’s article (“Indigenous Rights? Of Hiddenfolk and Native People,” December 2014). Ley suggests that American Indians have no constitutional right to litigate protected religious interests on sacred sites on federal lands.
Following the decision in Employment Division v. Smith, 494 U.S. 872 (1990), upholding Oregon’s refusal to give unemployment benefits to two Indians fired for using peyote in a religious ceremony, Congress enacted statutes giving tribal nations the right to litigate federal agency decisions impacting Indian religious practices. The first was the Religious Freedom Restoration Act of 1993 as amended, (RFRA), 42 USCS Sec. 2000 bb et. seq. The second was the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) of 2000, 42 USCS Sec. 2000 cc et. seq., expanding the term “exercise of religion.”
These and related statutes were intended to protect American Indian free exercise from asserted governmental interests in expanding development, to the detriment of Indian religious practices.
Sadly, a higher showing, that a native religious practice has been substantially burdened, is still required by courts. Cases involving mainstream religions get a “freer pass.”
Despite congressional action, tribal nations still seeking to protect their religious practices from governmental intrusion do not stand on an equal footing with mainstream religious groups.
Ironically, a glimmer of hope comes from Justice Alito’s discussion of the RFRA in his majority opinion in Burwell v. Hobby Lobby Stores, Inc. 134 S.Ct. 2751, 2760-62 (2014). The majority opinion acknowledges that the RFRA, broadly construed, not only restored the law before the Smith decision but provides individuals and organizations an “opt out” of federal law based upon religious beliefs.
Hopefully, a more expansive reading of RFRA and its progeny will now be applied to American Indian claims where governmental activities substantially burden native religious sites and practices.
Phil Schuster, Oregon City
We Love Letters
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