Oregon State Bar Legal Heritage Book Serving Justice
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following text is an excerpt from
hen prominent Portland attorney Cyrus Dolph and a small group of fellow
lawyers met in 1890 to form the Oregon Bar Association, they were
responding to a series of dramatic changes that had been transforming
American Society for the past 25 years.
The three decades after the Civil War (1865-1900) comprised one of the most turbulent and creative eras in American history. Although not faced with great wars or dramatic international crises, the nation confronted enormous domestic change. This was a time of incredible expansion and national ferment. Waves of immigrants pushed into port cities like New York, drawn from their homelands by famine, economic stagnation, and the dream of having farms of their own. Feeding their dreams was a network of railroads that reached virtually every far-flung corner of America and an aggressive advertising campaign by the railroad "barons" offering abundant land available for the taking near the rights of way. This new wave of immigration changed forever the face of the Trans-Mississippi West and filled the industrialized cities of the North. As Europeans and Chinese workers competed for jobs with newly freed slaves, labor unrest and race riots broke out. By 1893 the country had sunk into a major depression from which it was not to emerge until 1898.
Throughout this amazing period of change, America's intellectual and social life was also in ferment and professional life in the country was undergoing a sea change. Before the Civil War, an aspiring young man could absorb much from a learned and conscientious teacher or he could pursue a cursory plan of study under a slovenly one. Admission to the bar was done by a court of law, sometimes after an examination by a committee of judges, sometimes on the recommendation of an established lawyer. Abraham Lincoln once examined a candidate and recommended him in a note to a fellow examiner in these words: "The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He's a good deal smarter than he looks to be."
But after the Civil War, partly in response to its insecurity in a rapidly industrializing nation and partly as a means to get ahead through structured education, the growing middle class sought to change the traditional apprentice method of professional preparation. In a single lifetime, professors, doctors, and lawyers transformed their disciplines.
The Move Towards Specialization in Education
One of the most important changes in attitude took place at America's colleges and universities. The pre-Civil War liberal arts college had been based on a religious and classical curriculum, and the purpose of higher education had been to ready students for public service. Graduates were to leave colleges and universities not just prepared to become members of the professions but to become informed and moral citizens. College education would produce political and cultural leaders whose grounding in Christian values would provide a moral center for their country.
A college was not a place to learn to make money, to have a good time, or to find a spouse. The curriculum that would sustain the learning of values was an ancient one, extending to the Middle Ages and deriving from the English universities. The courses were Latin, Greek, natural philosophy (science), logic, rhetoric, ethics, mathematics, and moral philosophy. Classes were small, but each faculty member taught many. For this reason--and because it was assumed that there was an existing body of truth to be conveyed rather than new knowledge to be discovered--research played only a minimal role in the life of the faculty and students.
But after the Civil War, all of that began to change. At Harvard, beginning in 1869, a new president, Charles William Eliot, turned the university over like "a flapjack." Then in 1876 a wealthy Baltimore merchant, Johns Hopkins, established a new university that almost exclusively taught research-oriented graduate students; and in 1892 John D. Rockefeller's University of Chicago opened its doors. These new or reborn universities' reason for being was the quest for new truths, not the dissemination of revealed wisdom, which had motivated the old colleges. In these institutions, professors became scholars, tutorials became lectures, and undergraduates became anonymous. Something was lost in these changes, but they produced manifold gains as well.
The modern university contributed to an enormous increase in scientific and humanistic knowledge, much of it enhanced by controversies over Charles Darwin's evolutionary theories--controversies that were not confined to science but spread across the spectrum of intellectual life. Architects, economists, historians, theologians, writers, and sociologists argued mightily over attempts to transfer ideas such as natural selection and survival of the fittest from the realm of science to the humanities and social sciences. In this struggle, knowledge not only proliferated, it became specialized. Each new specialty had its own university department and, beyond the campus, its learned societies, academic journals, and scholarly presses. As knowledge became more divided and categorized, so too did university faculties. Before the Civil War, there was a president and faculty, but after the war the academic hierarchy became elaborate. At the University of Chicago, for example, there were eleven faculty ranks ranging from the sixth-class, one-year appointment to the first-class professor.
The Medical Profession Is Reformed
Doctors, too, had entered a new world. Members of the American Medical Association (AMA), founded in 1847, not only confronted scientific discoveries such as anesthesia and the germ theory but took up arms against the old apprenticeship system of physician training. In 1876 the AMA created the American Medical College Association to improve medical education, and by the 1890s, thirty-five states had separated the training and licensing functions of medical qualification. The culmination of this endeavor was the 1910 report on medical education funded by the Carnegie Foundation on Teaching. Conducted by Abraham Flexner, this scathing indictment of most medical schools resulted in the closure of many of them, the requirement of a bachelor's degree for admission, and the curricular requirements of clinical instruction and hospital internships.
Doctors and their national, state, and local associations also grappled with the problems of patenting medical inventions, wrestled with the methods of collecting fees, struggled with quack practioners, warred against pharmacists and manufacturers who sold worthless or dangerous patent nostrums, and tried to establish a constructive relationship between family practioners and the new medical specialists who emerged after each discovery in medical science. As in the professorate, medical doctors sought to incorporate scientific knowledge and hierarchical structures into their changing profession.
A New Kind of Legal Education
So, too, it was with lawyers. Forward-thinking attorneys first focused their attention on legal education. No longer did they believe that "reading law" with an established practitioner and then presenting themselves before a court for admission to the bar was appropriate. Prior to the Civil War, Jacksonian ideas of democracy had hindered efforts to promote law school training. The public believed that to require a more rigorous education and a systematic method of examination would unnecessarily restrict one's social and economic potential. In 1860 only nine of thirty-nine jurisdictions required a specific period of law study and only nine states had a rudimentary form of a bar examining committee.
Beginning in the 1870s, however, lawyers became cognizant of changes in the society and the economy that forced them to think again about their traditional practices and customs. The growth of large corporations and big cities made life as complex for lawyers as for all other citizens. Law became specialized, and both preparation and litigation became more expensive. Accordingly, more time was spent in preventive law, an emphasis that required a better-prepared lawyer to wrestle with the ever more complicated statutes and decisions arising from the modern city, corporation, and government. Those who did change, who did become better educated, came increasingly to resent those who held to the old ways.
In 1870 the Bar of the City of New York took the plunge for reform. It set up more rigorous standards of character and preparation for membership, and its principles, in turn, inspired other local bar associations. New Hampshire took the next step in 1873 when it created the first state bar association, and by the 1880s there were 176 such associations in the United States. Many of the members of these organizations were also advocates of the concurrent changes in legal education and qualifications. In 1878 New Hampshire again led the way by establishing a permanent centralized state bar examining committee. In the same year, the Harvard Law School was the first to require written examinations and a three-year course.
By now, the rising number of law school students also encountered teaching methods and materials their fathers would have missed. Dean Christopher Columbus Langdell introduced the case study method of pedagogy at the Harvard Law School in the 1870s, and the system spread--albeit slowly--to other institutions. Students, with or without case studies, now also had textbooks. In the years from 1868 to 1879, texts were published on negligence, municipal corporations, personal property and judgments, negotiable instruments, taxation, corporate securities, eminent domain, and code pleading.
The American Bar Association Steps In
The 1870s saw the creation of the first national organization of lawyers. Meeting in Saratoga Springs, New York in August 1878, fifty-five delegates formed the American Bar Association (ABA). The first work of the ABA was carried out through seven committees. Those committees' reports were discussed and evaluated at the annual meeting, which any member could attend and at which any member could debate and vote. The two emphases of these committees were law reform and legal education.
The major issue was the need for uniform state laws, and in 1889 the ABA created a special committee to deal with it head on. Soon several states had created commissions to work for uniformity, and in 1892, in conjunction with the ABA annual meeting, the first National Conference of Commissioners on Uniform State Laws (representing nine states) was held. Its first model law, which was widely adopted by the states, was the Negotiable Instruments Law, drawn up in 1882.
In the realm of legal education, the ABA's first committee, on legal education and admission to the bar, quickly joined the national movement for reform in legal training. In recognition of its importance, it was transformed in 1893 from a mere committee to the first legal "section" of the organization. Although by the turn of the century most American lawyers were not members of the ABA, it had established itself as a force within the profession.
The Oregon Bar Association Is Formed
These momentous changes in national and professional life were also felt in one of the nation's most distant and lightly populated states--Oregon. Although this Eden on the Pacific Coast was largely known for its romantic early days of exploration, fur trade, and Oregon Trail adventures, not all Oregonians were traditionalists, proud of the past, secure in the present, and complacent about the future. Among those who recognized the need for change was a little band of eminent lawyers who met in Portland in 1890 to form the Oregon Bar Association. Cyrus A. Dolph, the guiding spirit behind this venture and its first president, led the effort to draw up a constitution and bylaws, form an executive committee, and plan the first annual meeting, to be held in the following year. The association's purposes were "to cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to maintain the standard of integrity, honor and courtesy of the legal profession, and to cherish the spirit of brotherhood among the members thereof." Before 1890 twenty-nine states and the District of Columbia had founded bar associations. Besides Oregon, Michigan and Oklahoma founded their bar associations in that year.
The First Annual Meeting
On 17 October 1891, a pleasant fall day, President Dolph called to order the first annual meeting of the association in the courtroom of Federal District Judge Matthew P. Deady. Dolph was born in New York, came to Oregon in 1859, taught school for a time, and was admitted to the bar in 1866. In 1883, after a stint as Portland city attorney, he became the senior member of the law firm of Dolph, Mallory, Bellinger, and Simon. Like Dolph, many of the others who attended this meeting were distinguished in blending political and legal careers. Deady was Oregon's most important judge in the nineteenth century. George Williams was once attorney general of the United States. Rufus Mallory had been a member of Congress and William W. Thayer governor of Oregon. William S. Newbury had been mayor of Portland and Erastus D. Shattuck a justice of the Oregon Supreme Court.
After the approval of the minutes of the previous meeting, the delegates elected twenty-eight new members, each of whom had to have been a member of the bar for at least one year. Old and new members then chose officers for the coming year: Lewis B. Cox, president; Charles H. Carey, secretary; and Osian F. Paxton, treasurer. They also elected vice-presidents for each of the seven judicial districts and four members of the executive committee.
The morning session closed with an address by the retiring president, who stressed three areas in which bar associations could contribute to the advancement of the legal profession: to enlarge the minds of individual members by giving them contact with other lawyers; to gain the benefit of "fraternal criticism," by which "we shall be incited to greater industry and zeal, and the standard of professional competency will be thereby elevated;" and to "take united action concerning legislation relating to our system of jurisprudence or affecting the material interests of our State." More specifically, and significantly in concert with the first aim of the American Bar Association, Dolph called for the formation of an Oregon Bar Association committee to submit to the state supreme court "for adoption a course of study to be pursued by students at law, and providing also for such a system of examination as will guarantee the exclusion of all applicants not possessing requisite qualifications." In light of the later movement for an integrated bar, it is interesting that Dolph did not call for the Association to be empowered to admit or disbar lawyers. The president concluded his address by touching on other themes that would engage the association throughout its life: legal ethics, excessive litigation, disrespect for judges, appeals to opinion to influence litigation, and contingency fees.
Following the presidential address and another by Lewis L. McArthur on "The Formation and Adoption of the Constitution of Oregon," the delegates debated and adopted four resolutions--all directed to the Committee on Jurisprudence and Statutory Reform. The first concerned Multnomah County's reputation as a "divorce mill," where 100-fold more divorces were granted annually than in jurisdictions of comparable population. The committee was to prepare a bill addressing this problem for submission to the state legislature if approved at the next annual meeting. The committee was also to study and report to the next meeting (but not to draw up bills) on "the unnecessary frequency of oaths and affidavits required under the existing laws of this state," the "fees of officers connected with the official administration of justice," and the election of a non-partisan judiciary. The delegates also thanked the Union Pacific and Southern Pacific Railroads for--as was the custom of the day--providing free transportation to Portland for out-of-city delegates. At the close of their first meeting, the Oregon Bar Association members had set a course that emphasized those national and state concerns--legal education, ethics, and legislation--that would engage it for many decades.
Setting Rules for Admission to the Bar
Although discussion of educational reform, one of the association's objectives, began in 1892 at the second annual meeting, it would be more than a quarter century before the goal was met. Initially, the Committee on Legal Education and Admission to the Bar was concerned instead with upgrading and codifying rules governing admission to the bar. Between 1892 and 1933, the association grappled with elevating the standards of admission, flushing out individuals who continued to practice with temporary licenses, requiring that they either obtain permanent admission or be disbarred, and preventing the admission of those "who are immoral, dishonest," and entering the field "solely for the money." At the 1892 meeting, the committee adopted rules that included :
The committee would also conduct an examination containing both oral and written components and then report to the chief justice of the Oregon supreme court whether to recommend or decline each application for admission. If recommended, the applicant would then be examined by the justices in open court on such topics as common law, the history and constitutional law of England prior to the Declaration of Independence, the history and constitutional law of the United States, and the constitutional law of Oregon. Applicants found qualified at the conclusion of this process would be admitted to practice.
The committee also made provision for qualifying attorneys licensed in other jurisdictions where common law prevailed by stating that such applicants would be provisionally licensed for nine months but then must apply for permanent license.
The new requirements added to the burden of the three-member court, which was already overworked as the result of increasing litigation. At the 1903 annual meeting the Committee on Legal Education and Admission to the Bar proposed a solution, requesting that the supreme court appoint a standing committee to assist with bar examinations. The new committee would conduct examinations and endeavor to raise the standards, as directed by the court. For applicants who did not hold a Bachelor of Arts or equivalent degree from a recognized institution, the committee would administer a special examination to determine their education and knowledge. The concept of a standing committee was not new: Washington state had had a permanent commission since 1895.
Raising Educational Standards
Educational requirements for lawyers continued to be problematic, causing the Oregon Law Review in a 1921 editorial to call them "a stench in the nostrils of intelligence." Raising educational standards, however, was a controversial issue. Antebellum law schools typically were proprietary schools and many states had no prescribed course of study. Most law schools were no more than second-class technical schools. Law departments within universities, including Harvard, Yale, and Tulane, were marginal. The law departments had no university prerequisites, and most students entered after graduation from high school. Christopher Columbus Langdell, dean of Harvard Law School from 1870 to1895, is credited with the innovative reforms that led to the creation of the legal profession as a university-educated one, requiring a three-year graduate degree. However, even as late as World War I, this concept enjoyed only limited acceptance.
Between 1870 and 1925, the most pressing issue was to increase law school admission standards nationwide, but many schools encountered resistance. The 1899 class at Cornell fell from 125 to 62 when the school required the completion of four years of high school, and when various schools began to require at least one year of college their enrollments also declined. However, despite this opposition, the American Bar Association continued to press for a better-educated law student.
In Oregon the issue was first addressed at the annual meeting of 1898, when the Committee on Education and Admission to the Bar stated, "The business of the Bar Association, working through this committee, is to raise the present standard of legal education." Directing its attention to the law school at the University of Oregon, the committee charged the school with using outmoded methods of teaching by faculty who "have been too busy to revise" their lectures and whose lectures and quizzes taken down by students in shorthand--"are handed down from class to class and constitute the law library." The committee further charged that the faculty failed to stimulate a learning environment, allowing unmotivated students to rely on these hand-me-downs rather than to seek original legal sources. Acknowledging that "two or three of the best schools" demanded college graduation, the committee suggested that "we can at least ask that young men shall know the subjects covered by a high school course" and requested that the association solicit from the board of regents the "promise of co-operation" to achieve the desired changes.
Unfortunately, little was accomplished in this matter. Nationwide, law schools were beginning to require a three-year course and mandate a higher level of education prior to admission, but during the 1903 annual meeting the committee criticized Oregon schools as "existing solely and exclusively for the purpose of enabling candidates for admission to the bar to pass the examination required by the Supreme Court" and reaffirmed the necessity of raising educational standards. Among other things, the committee reported that the University of Oregon Law School in Portland was under scrutiny and although improvements had been made, the instruction was "still entirely inadequate to provide that preliminary equipment which every lawyer should receive before he applies for admission to practice." In general, the committee found the law students lacked "a thorough grounding in the fundamentals of a common school education," adding, "A lawyer who knows only the law is worse than useless as an advisor in the practical affairs of life, which are so much more important, and take up so much more of the profession's time, than is given to mere litigation."
By 1906, however, the committee noted "with satisfaction" that the law school at the University of Oregon had expanded its curriculum to three years, "thus placing the school more nearly on an equality with schools of legal education in the Eastern States." The committee specifically approved of the law school's enlarged faculty and believed the school more adequately met the standards of the state, but this opinion had not yet been validated through investigation. Still, the battle for higher standards continued.
Nearly two decades later, the law school's own dean, William G. Hale, said he did not feel that his school's many reforms were broadly welcomed, and he admonished the legal profession for "not now keeping pace with the great march of human events." The complexity and variety of contemporary society, he said, called for a greater knowledge of economics, history, political science, and sociology--changes that had occurred at University of Oregon. (Prior to 1915 the law school had no pre-legal requirements, but in that year it began to require four years of high school and two years of college.) Unfortunately, he concluded, many of those in the legal profession were opposed to these changes.
One of the major objections to more stringent standards was the cry of elitism, based on a fear of many that those of poor and modest incomes would be excluded. The Abraham Lincoln argument, which postulated that Lincoln (who never attended college) was one of the greatest attorneys, was most commonly cited; but supporters of reform countered by stating that in Lincoln's day it was unnecessary to attend college and now times had changed. If a poor man wanted to attend college, they said, there were ways to support himself "if he has the courage and tenacity and self-restraint to avail himself of them." The ultimate argument, however, was public service. If lawyers were to serve all members of society adequately, a high level of education was deemed essential.
Finally, at the 1922 annual meeting, after "twenty-five years of study and discussion by the Bar of America," the Oregon Bar Association resolved to comply with the standards adopted by the national organization. Requirements for admission to the bar included a minimum of two years of college, three years of legal studies, graduation from a law school, and passage of an examination.
Establishing Standards of Conduct
From its inception, the bar has endeavored to assure that all those practicing law are of high moral character, and in Oregon the Grievance Committee sought the "correction of unprofessional conduct" and the "general purification of the bar," a task that at first included lawyers not associated with the Oregon bar. One of the issues the committee addressed was advertising, which though not illegal was considered unprofessional. Throughout the early years, members also were investigated for such offenses as libel, "gross drunkenness and misbehavior in court," misappropriation of funds, and perjury.
At the 1895 meeting the Grievance Committee lamented the necessity for disbarment proceedings, complaining that the investigations were so time consuming and prosecution so long delayed that attorneys could continue to practice long after they were deemed unfit. The committee requested the adoption of measures or a statute that would secure the prompt disposition of such cases, warning that if the bar were not diligent in removing disreputable members, "its reputation will be so tarnished that it will take years...to regain...."
Lobbying for Change
At the annual meeting of 1892 the Oregon Bar Association embarked on its first lobbying endeavors when the delegates voted to suggest several specific changes in the Oregon code. It passed a resolution urging the members to report omissions or errors in the code of procedure to the state Committee on Judicial Administration and Remedial Procedure so that proper corrective legislative action could be taken. The association also asked the legislature to abolish the offices of fee-supported justice of the peace and constable in the City of Portland and replace them with salaried judicial officials; to increase the number of judges in Multnomah County; to place all public officers in counties and districts of the state, including the clerk of the supreme court, on salary rather than fee support; to improve the method of selecting jurors; and to modify the present system of pleading.
Nothing was accomplished in bringing these matters before the legislature in 1893, nor was a new committee on legislation able to do more in the next session in 1895. At that time the committee prepared and submitted to the legislature six bills, including one abolishing fees of public officers. Later, the committee reported tersely on the outcome of its efforts: "Not a single bill submitted at the request of your committee was enacted into law." Two years later the committee reported on its work on several bills sponsored by the association: "Your committee endeavored to present these bills to the Oregon legislature, but were unable to secure consideration of them by that deliberative body."
This discouraging news moved one association member, Judge John B. Cleland, to propose at the 1897 meeting that the organization abandon interest in legislation. His motion was voted down, and at the following annual meeting, C. E. S. Wood urged the members to remain advocates, at least for two bills he supported (those concerning testimony of expert witnesses and physical examination in cases of personal injury). Wood's position seemed to be quixotic, for the chair of the Legislative Committee reported that "I will say that we have nothing to report except defeats." The whole matter of lobbying was again addressed in 1900, when the president of the assocation surveyed the first decade of the organization's history.
His assessment was not encouraging: "In one respect...it seems to me, it must be admitted that the association has not fully answered the purpose of its organization; and that is its almost total failure as a direct and determining influence upon state legislation." This series of failures, he believed, could be traced to "many of the oldest and most experienced lawyer members of this assocation who feel that this is not part of the purpose of this organization." Indeed, the views of this group, which argued that the effort was misdirected, had prevailed at the annual meeting of 1898.
Instead of giving up, however, association president Lionel R. Webster suggested that the process of lobbying be tightened up. He suggested that, in future, the Committee on Legislation draw up suitable bills, summarize the reasons for them, send the bills and summaries of them to each legislator and association member, and notify certain organizational members who might have special influence in given cases to use that influence to help pass the desired legislation.38 The president's exhortation may have worked, because in the 1901 session the association did accomplish something in Salem. During that session, members became exercised over the fact that "a large number of cases had recently been brought in the justice court at Troutdale, when both the plaintiff and the defendant were residents of the city of Portland; [and] that a larger number of cases thus brought were for small sums, making it more expensive for the defendant to defend the action than to pay the plaintiff's demands." A special meeting of the association was called, a committee of twenty-five lawyers was appointed, its members rushed off to Salem, and a law was passed prohibiting the practice in the Troutdale court. The only other achievement was one secured by the Committee on Legislation, which introduced a bill to regulate the process of disbarment and saw the bill become law.
The Public Relations Approach
Over the next decades the association was mainly impotent in its lobbying endeavors, but in 1927 President Lair Thompson took a new tack. Frustrated by the lack of legislative success, although not blaming it members ("Busy lawyers cannot camp at Salem at their own expense"), Thompson proposed that the association hire a lobbyist to do full-time work during the legislative session. Nothing came of the idea, but it was a step towards a larger goal.
By 1928 frustrations were expressed again in the address of President-elect W. M. Davis. "When it comes to taking action upon matters that come before the legislature, the boys do not turn out and attend as they should....The members of the bar take the least interest in their own affairs of any profession we have. Dentists, doctors, chiropractors and anybody else going to the legislature are there in numbers and put in unstintingly of their own money and time for the benefit of their own profession. There are more lawyers in the legislature than any other class of men. It is not the farmers that keep the judges' salaries down. It is the lawyers themselves,...They play politics."
Not all was failure, however. For one thing, the legislative committee members were able to help see that a non-partisan judiciary bill was passed in 1929. But for the most part, triumphs were few, causing the Executive Committee, under the leadership of President E. O. Immel, to propose a standing committee on public relations. This committee, Immel said, was not only to work on legislation but somehow to remove "from the mind of the public certain mistaken ideas with reference to our courts, and the members of the legal profession."
The idea of a bar association public relations committee was not unique to Oregon. Beginning in Louisiana in 1929, state bar associations in Minnesota, California, and Massachusetts started looking to ways for ways to publicize the activities of lawyers in a positive light. In Oregon, a public relations committee was created at the annual meeting in 1930 and spent its first year trying to mold public opinion by contacting newspaper editors whose journals had published articles critical of the bench and bar. The committee also asked members of the legal community to function as a kind of informal clippings bureau and pass articles on to the committee.
President Immel, who chaired the Public Relations Committee, also energized the Legislative Committee. He got its members to formalize their duties under five headings, the most important of which were to advocate for and oppose projected legislation and to "promote in the public mind respect for the bench and bar of the state of Oregon." Yet in spite of all this work, President Charles H. Carey, in his 1922 presidential address, compared the association's success unfavorably with that of other interest groups, saying, "if the labor organizations make a demand it has weight with the Legislature. But when carefully prepared bills are drafted and submitted by the Oregon Bar Association they are treated with contempt and are not supported even by the lawyers in the Legislative Assembly.
By 1933 things began to improve, and in the legislative session that year the legislative committee was able to defeat a constitutional amendment that would have permitted the reduction of judges' salaries during the term for which they were elected. The committee also successfully supported a bill to allow the Industrial Accident Commission to fix legal fees for representing workmen before the commission. The major failure of the session was the defeat of a bill to create an incorporated bar association. (See page 15.)
Where public relations were concerned, the responsible committee reported a bit of progress in 1932-33, claiming credit for dramatically reducing editorial criticism of bench and bar. The Committee on Public Relations noted with pride that the American Bar Association, taking note of the unsavory reputation of the legal profession, began sponsoring a series of nationally broadcast talks about law and lawyers. Committee Chair Immel concluded his 1933 report by recommending that the time had come to involve the local bar associations in public relations work. This suggestion was adopted, and in the ensuing year the committee was expanded and a member appointed to it in each of thirty-four of the thirty-six Oregon counties.
Attempts at Judicial Reform
As one might expect, the association dedicated much of its time to judicial and statutory reform, although its efforts were not always successful. The number, nature, and working conditions of judges were often an issue. When the association was founded in 1890, the Supreme Court of Oregon numbered three judges. Their salary was $2,000 a year, with additional compensation for supplementary services. The president of the association called attention to these conditions at the annual meeting in 1893, declaring that "it is absolutely cruel to impose so much hardship and responsibility upon persons as those judges are compelled to bear." Committees of the association urged an increase in the number of judges in 1894, 1895, and 1898, and in the last year a special committee was appointed to look into the matter. However, it was not until 1909 that the number of judges was changed to five or until 1913 that it was increased to seven.
The association also did its best to lighten the work load of the justices. In his evaluation of the state's legal system President Cox in 1892 advocated legislation that would limit the types of appeals to the supreme court. In 1894 the Committee on Judicial Administration and Remedial Procedure recommended several changes in the code, including definition of a transcript, limitations on appeals, and mode of jury selection. In 1896 a special committee on appeals met with the chief justice to discuss changes in the rules of the supreme court to accelerate the appeals process.
The association was not unmindful of the working conditions and terms of judges in other respects. In 1895 a special committee on the work of the supreme court took its charge seriously. It circulated a questionnaire to the various appellate courts of the United States, as well as to prominent attorneys, about the essentials of an effective appeals court. The answers were clear. The most important considerations were length of term and salary. In response to this information, the committee recommended lengthening the term of office of judges. However, the association did little to follow up this effort. A retirement system for judges was discussed in 1927, and a committee worked with Representative Allan A. Binyon for a law that would establish a retirement system in 1931. The bill, which failed to pass, provided for retirement benefits at the age of seventy for circuit or supreme court judges who had served for at least fifteen years.
Delegates to the annual meetings also heard reports and took action on the lower courts. In 1893 a committee report advocating additional justices in Multnomah County was accepted. In the same year the state legislature refused to pass an association bill abolishing the justice of the peace courts and the office of constable in the City of Portland. Many years later, in 1928, President John L. Rand urged an increase in the number of circuit court judges in Multnomah County and an increase in the pay of all circuit court judges. In 1927 the association resolved in favor of increasing the salaries of circuit court judges by $2,000 a year. In 1929 the state of the judiciary received legislative attention, and the Oregon bar's legislative committee, president, and other officers helped obtain laws providing for an additional circuit judge in Multnomah County and increasing the number of district judges there. In addition, a bill that would increase the number of circuit judges in the fourth district was referred to the people in the election of 1930.
The Move to Establish Judicial Councils
Members of the Oregon judiciary were also affected by a national movement to create organized meetings of judges through the formation of judicial councils. The federal government created the first judicial council under the leadership of Chief Justice William Howard Taft, and several states followed, including Oregon in 1923. The association was the moving force in creating the Oregon body.
The Oregon Judicial Council was composed of the chief justice, one associate justice, and three circuit court judges. Its duties included recommending, to the supreme court, rules to simplify procedure and expedite the business of the state's courts. It also was to provide an annual report to the governor concerning the work of the state judiciary. Hampering its execution, however, was the fact that the statute provided no paid staff to accomplish the council's important charges.
In 1926 the association recommended that two lawyer members of the legislature and three active members of the bar be added to the council. In that same year the council produced its first substantial achievement, a study of the time elapsed in the courts of Multnomah County between the filing of indictments or complaints and the time of trial or the rendering of judgment.
Support for a Non-Partisan Judiciary
For many years, the association also dealt with one of the governmental reforms arising during the Progressive Era of the early twentieth century: a plan to replace the nomination of judges by political parties with a system of non-partisan elections. The association first took a position on this issue at its 1910 annual meeting when it passed a resolution in favor of the non-partisan judiciary, but it took the legislature two decades to respond. At its annual meeting in 1930 the association again endorsed the reform, which passed the legislature in 1931.
Attempts at Statutory Reform
From its earliest days, the association worked for statutory reform as part of a national movement spearheaded by the American Bar Association. At its 1892 annual meeting, the association discussed the desirability of Oregon following the lead of other states in appointing a committee to recommend areas of law that needed national uniformity, but nothing was done. Two years later, C. J. Schnabel, in an address at the annual meeting, suggested that the association concentrate on making recommendations in the area of marriage and divorce, but again nothing happened. In 1902 the association recommended to the legislature five bills that were supported by the National Board of Commissioners, a body that worked for uniform state legislation. In 1903 the association formed a Committee on Uniform Legislation to push these bills, but it was unable to persuade the legislature to enact any of them. In the following year the committee determined to support only one of them, the measure to authorize the appointment of an Oregon delegation to the National Commission on Uniform Laws. This bill also failed in the 1905 session. By this date thirty-eight states, but not Oregon, were represented on the national commission.
As in the matter of uniform statutes, the association intermittently supported more modest efforts at statutory reform. In 1891 the annual meeting passed a resolution seeking changes in the divorce law. In 1893 and 1894 the annual meeting addressed resolutions and reports for reforming procedures on pleadings, but nothing was accomplished to change the law. These early years of the organization also saw a more comprehensive approach to Oregon statutory reform. Participants in the 1893 annual meeting discussed a resolution that the Committee on Jurisprudence and Statutory Reform consider whether or not to ask the legislature to set up a commission to review the codes of practice and the general statutes. The resolution occasioned a long and spirited debate, with opponents fearing that the commission's members, in order to justify their appointment, would make too many changes in the code and believing that recommended changes in law should come from experience in the courts rather than from an appointed body.
As in other areas of its endeavors, the association's statutory reform efforts flagged after the first few years they were tried, and they were not to revive until after the close of the First World War. A committee appointed in 1919 "to revise and recommend a code of probate procedure" reported in 1921 at the annual meeting, where delegates also discussed a report of the Committee on Jurisprudence and Statutory Reform that recommended changes in procedures for permitting the circuit courts to certify to the supreme court questions concerning the construction of statutes. The same meeting authorized the appointment of a committee to draw up a bill permitting the supreme court "to promulgate rules governing practice in all courts of record and appellate procedure." In 1927 the annual meeting resolved that there should be a committee established "to consider the subject of recodification of the laws of the state of Oregon,..." Then in 1929 there was a long discussion of the need to study the defects in the system of criminal procedure.
In the 1920s a wave of national law reform swept over the association following the creation of the American Law Institute in 1923. That effort was led by Elihu Root, one of the best-known lawyers of his generation, former secretary of war, former secretary of state, and former United States senator from New York. Buoyed by a large grant from the Carnegie Corporation and supported by prominent lawyers and legal scholars, the Institute set about its task: to make "an accurate statement of the common law as it exists today and to have the statement represent the best thought and legal opinion of the entire profession." As work began under leading national authorities in all fields of law, each state took up the task.
In Oregon the faculty of the University of Oregon Law School began a study of how the state's laws, especially in the fields of contracts and conflict of laws, compared to the restatements being prepared by the Institute's scholars. At the 1929 annual meeting, members of the association voted to establish a committee to cooperate with the law school professors in their work and in a related matter--voted to hold its 1934 annual meeting in Eugene so that its members could attend the first annual meeting of the Pacific Coast Institute of Law and Administration of Justice. The latter body was a progressive one, an attempt to bring together lawyers and social scientists to see if there was a lag between the law and the rapidly changing economy and society of the Depression years.
Governance and Activities of the Association
The organization, structure, and activities of the Oregon Bar Association changed very little over the years, and the original constitution of 1890 lasted until replaced by one approved in 1926 that allowed for the incorporation of affiliate members. At each annual meeting those members in attendance elected the officers of the association--president, treasurer, and secretary--who had the usual duties of these officers, until 1893, when the constitution was amended to authorize a vice-president from each of the state's judicial districts. During the association's early years, the president appointed the members of its committees, but the nature of those groups changed little with the passage of time.
The most important aspect of the governance of the association was that all of its officials were unpaid. Thus, the organization rose and fell largely on the strength of the particular officeholders in any given year. One heroic figure was John Guy Wilson, longtime secretary. Another was E. O. Immel of Eugene, whose presidency from 1929 to 1930 was marked by his successful attempts to energize the Legislation Committee and by the creation of the Committee on Public Relations. Immel attended the meetings of the state bar associations of California and Washington; called frequent meetings of the executive committee, which were well-attended; and helped continue the association's sponsorship of high school oratorical contests on the federal Constitution. Not surprisingly, his enthusiasm resulted in the addition, during his tenure, of two county bar associations those of Linn and Coos counties. But when an association president was lethargic, the organization reflected his lack of interest.
Regardless of the enthusiasm of its president, the association always held an annual meeting a gathering marked not only by the election of officers, the passage of resolutions, and committee reports, but by addresses given by both local and out-of-state speakers, on various topics. Annual meetings were usually held in Portland, but sometimes in other cities of the state.
Another annual event was a banquet featuring an address by an invited speaker. By the early days of the twentieth century, the banquet was preceded by a social gathering that gave the younger members of the bar the chance to socialize with the federal judges and the state supreme court and circuit court judges.
Over the years, the finances of the association were a perpetual problem. Again and again, the officers and the committee chairs reported difficulties. In October 1893 the balance on hand at the time of the annual meeting in October was $48.50, with receipts for the period a mere $250.50. In 1895 there was not even enough money on hand to publish the proceedings of the 1894 meeting, and they were issued a year late.66 However, the greatest financial debacle was revealed to the unsuspecting delegates to the 1897 annual meeting when O. F. Paxton, the former treasurer, reported malfeasance. Speaking in the third person, he wrote:
Owing to the misconduct of a trusted employee, whom he [Paxton] had entrusted with the collection of dues from members of the association, there was much uncertainty as to what members had paid, and that since the discovery of said employee's embezzlement, the book of the treasurer could not be found; that he [Paxton] hoped a committee would be appointed to investigate the matter, and that he would be responsible for any loss caused to the association by the acts of said employee.
What he was referring to was that during his term of office which ended in 1895, his employee, L. D. Savage, had embezzled some of the membership dues. A special committee looked into the matter and exonerated Paxton of malfeasance, so that by 1898 the treasurer was able to report that the finances were again on a sound basis. This judgment was optimistic, for by 1900 there was no money to pay the expenses of the annual banquet. A quarter of a century later there was no money to publish, in full, the proceedings of the annual meeting.
The lack of money, of course, related to the paucity of members a chronic problem that was usually addressed by wishful thinking. Although there were seventy charter members, few in the years ahead were willing to pay the $2.00 annual dues . In 1905 there were seven hundred or more lawyers in the state, but only *** get figure*** in the association. Nor had the situation improved by 1931, when the president remarked in his annual address "that only a small percentage of the lawyers of our state participate in our meetings, or even have knowledge of our ideals and purposes." Membership prospects were so poor by this time that the chair of the membership committee suggested that the committee be disbanded and that membership be enhanced by persuading additional county associations to affiliate with the state bar, thus automatically increasing its rolls. A year later, when a bill was drawn for the incorporation of the state bar, it contained a dues provisions of three dollars a year for active members--a realistic sum, for now all of the state's lawyers would be required to join the new organization.
The Positive Side of the Old Association
Besides focusing on its own problems and activities, the Oregon Bar Association on occasion reached out to larger communities and confronted issues beyond the borders of the state. From time to time, gestures were made to other bar associations, whose representatives would sometimes address the annual meeting on various topics. There was an attempt made at the annual convention in 1904 to get the American Bar Association to hold its annual meeting in Portland in 1905 at the time of the city's Lewis and Clark centennial exposition. In 1922 an automobile caravan took some members from Portland to San Francisco for the ABA convention, and two years later the association sent two delegates, Judge Wallace McCamant and C. W. Thomas, to the ABA meeting in Philadelphia. In 1905 there was talk at the association's annual meeting of forming a Pacific Coast bar association, although this came to naught.
The association's annual meetings saw the passage of resolutions on a variety of subjects. In 1901 a resolution commemorating the installation of John Marshall as chief justice of the United States was read at a public meeting in Portland celebrating the anniversary. The desirability of the United States joining the World Court was endorsed in 1923, 1929, and 1931. The association also proclaimed its "emphatic disapproval" of a bill to reorganize the Oregon public universities, fearing its effect upon the University of Oregon Law School. And on infrequent occasions, the association undertook public service programs such as sponsoring high school oratorical contests. But its most impressive service was its support of the Oregon Law Review.
The Review was created in 1921 by the faculty of the University of Oregon Law School and was sent gratis to all the members of the bar. Two years later, the association's president, Charles Carey, suggested that one issue each year carry the minutes of the association's annual meeting and other news of interest to the members of the state and local bar associations. This plan was adopted in the next year, and six members of the Association were added to the Review's board of editors. This alliance worked well until the Great Depression, when the Review encountered financial troubles because the University of Oregon greatly reduced its contributions to the journal. Its editors and Wayne Morse, dean of the law school, appealed to the association for financial help. Their plea was heeded, and the association doubled its dues in 1931 to give the Review one dollar a year per member for its support. Unfortunately, as the depression deepened, the association itself fell upon perilous times financially and was forced to abandon its pledge to the Review in 1933. This failure to support the Review was unfortunately symptomatic of the entire career of the association.
Underlying Weaknesses of the Association
Although the Oregon Bar Association entered the tumultuous decades of the 1930s with some record of success, its entire history had been marked mainly by lethargy and impotence. At the annual meeting in 1897, the president declared "next in order of business is the report of the executive committee. No report of this committee is on file, and it seems none was read at the last annual meeting." The record of two speakers' addresses at the annual meeting in 1904 was reported as: "These two addresses were extempore, and the official stenographer who was employed to report this meeting failed to transcribe her notes, and hence it will be impossible to print the addresses as is the custom." In the same year the executive committee reported lugubriously that "it had trouble in procuring the assent of the members of the association to prepare papers for the annual meeting." As late as 1928 the nominating committee did not meet because it was impossible to gather the members into a quorum.
The Demise of the Association and the Creation of an Integrated Bar
A lack of success in its legislative endeavors, the efforts to reshape the public's perception of the profession, and the great national economic depression of the 1930s combined to bring to fruition the demise of the Oregon Bar Association and the creation of its successor, the incorporated or integrated bar, in 1935. The integrated bar movement in the United States was a development of the early twentieth century. In 1914 the Wisconsin Bar Association considered the matter of an all-inclusive and self-governing bar, in 1915 the Nebraska Bar Association discussed the matter of an incorporated bar, and in 1918 the California Bar Association appointed a committee to study the matter. The American Judicature Society provided the support of a national organization for such efforts when it published a model statute for an integrated bar in 1919.
In Oregon the campaign for the integrated bar began in 1924 when association president Fred W. Wilson proposed that a bill to incorporate the bar of Oregon be introduced into the state legislature. Wilson said that it was time for Oregon to join the three states that had adopted the integrated bar or at least join the eleven states that were considering doing so. The president supported his case by stating that the incorporated bar association would have a treasury to pay the salary of a secretary (who was now a volunteer) and other expenses that were now borne by its officers. To further the cause, the Oregon Law Review carried a long article in December 1924 by Herbert Harley, the secretary of the American Judicature Society. Harley said there would be opposition ("certain practitioners who sense an encroachment upon what they regard as their private preserves"), but he hoped that this could be overcome by clarifying the advantages of integration. These advantages he saw to be the greater power to influence legislation; the power to discipline erring lawyers; opportunities to inform the public about the duties and merits of the profession; and the publication of a journal. To ease the path to incorporation, Harley recommended that the new bar organization not be empowered to examine for admission to the bar and not cause controversy by taking stands on issues of public policy. The integrated bar was debated at the annual meeting in the fall of 1924 but no action was taken by the delegates.
In spite of this rejection, the cause of integration advanced. By 1928 the American Bar Association was holding conferences at its annual meetings "to promote interest in and the work of the state bar associations." At the annual meetings of the Oregon Bar Association, talks were delivered by pro-integration lawyers from California, Idaho, and Washington.
Under the leadership of the dynamic president E. O. Immel, who was working hard simultaneously on legislative and public relations endeavors, the association at its 1930 annual meeting created "a committee to study the incorporation of the state bar association and report back to the next meeting as to its advantages and disadvantages." The committee, with Oscar Hayter as its chair, reported its progress at the annual meeting in 1931and recommended that it draw up an incorporation bill for consideration at the next year's annual meeting. The committee did present such a bill in 1932 (by which time incorporated bar acts had been passed in Alabama, California, Idaho, Nevada, North Dakota, and Oklahoma). The bill was approved by the Oregon Bar Association and discussed at a meeting of the Multnomah County Bar Association and at other meetings around the state, but its smooth progress ended in the legislature. The incorporation bill came to a vote in the Oregon House of Representatives in 1933, where it passed with only one dissenting vote but was defeated by one vote in the Senate.
Fortunately, defeat did not engender discouragement. At the 1933 annual meeting, President Arthur K. McMahon spent most of his presidential address urging the virtues of an integrated bar and pointing out that twenty states had adopted such a system. The major invited speaker at this convention was Jess Hawley, who had shepherded the integrated bar bill through the Idaho legislature. Hawley pointed out the ways in which this had been done (including having the bill that had been bottled up by lawyers in the Judiciary Committee sent to the more favorable Livestock Committee as that body "had jurisdiction over all predatory animals"). The integrated bar committee urged that the bill be resubmitted at the 1935 session. All this persistence paid off, and the bill creating the new organization was passed in 1935.