Oregon State Bar
1998 House of Delegates Meeting

Eugene Hilton
66 East Sixth Avenue
Eugene, Oregon

Saturday, September 26, 1998, 9:00 a.m.


Dear OSB Member:

Enclosed is the agenda for the 1998 Oregon State Bar House of Delegates Meeting scheduled for Saturday, September 26, 1998, at the Eugene Hilton, 66 East Sixth Avenue, Eugene, Oregon. It begins at 9:00 a.m. Although only delegates may vote on the resolutions to be presented, members are encouraged to participate in the discussion and debate of these items.

The Board of Governors is not proposing a membership fee increase for 1999.

Resolutions include:

A Diversity Summit is planned for Friday, September 25 from 2:00 to 5:00 p.m. If you are interested in attending, please call Stella Manabe at ext. 337. I would also like to call your attention to the Annual Awards Luncheon which is scheduled from 12 noon to 2:00 p.m. on Friday, September 25 at the Eugene Hilton. A few tickets may still be available by calling Jennifer Maldonado at ext. 377. Our special award honorees include:

President's Membership Service Joint Award: The Honorable Deanne Darling and Albert Menashe

President's Public Service Award: Roland 'Jerry' Banks, Mark Comtock, Willard Cushing, Henry Hewitt, Terry Ann Rogers and Grace Williams

I invite you to participate in the discussion of the items being brought before the House on September 26, or if you are unable to attend, please contact one of your delegates to discuss your views (they are listed in the July issue of the Bulletin, page 54) or access delegates on the bar's web page (www.osbar.org).

If you have questions about the OSB House of Delegates Meeting, please call Donna Richardson, Executive Services Administrator, at 1-800-452-8260, 1-503-620-0222, ext. 404.

We look forward to seeing you in Eugene!

Kevin K. Strever, President
Oregon State Bar

OREGON STATE BAR
1998 House of Delegates Agenda
Eugene Hilton
66 East Sixth Avenue
Eugene, Oregon

Saturday, September 26, 1998, 9:00 a.m.

Presiding Officer: Kevin K. Strever, President, Oregon State Bar

Agenda

1. Call to Order Kevin K. Strever

2. Overview of Parliamentary Procedure Kevin K. Strever

3. Report of the President Kevin K. Strever

4. Adoption of Final Meeting Agenda Kevin K. Strever

Items with Financial Impact

5. Report of the Treasurer and Chair of the BOG Budget and Finance Committee; Board Action Setting 1999 Membership Fees and Assessments, page 3 Edward Jones

6. Delegate Resolution No. 8 - urges support of Law-Related Education,
page 4 Barnes H. Ellis
Daniel E. O'Leary

Resolutions with Legislative Implications

7. BOG Resolution No. 1 - to amend HOD Rule of Procedure 3.1 to allow alternate ex-officio delegates, page 5 Edwin A. Harnden

8. Delegate Resolution No. 13 - to amend ORS 9.136 to allow for elected alternate delegates, page 5 Charles F. Hinkle

9. Delegate Resolution No. - 1 to urge Legislature to submit to the voters, and the voters to adopt, a Crime Victims' Bill of Rights Amendment to Article 1 of the Oregon Constitution, page 6 Carl R. Neil

10. Delegate Resolution No. 4 - to adopt HOD Rules of Procedure 5.8, 5.9 and 5.10 to create positions of Chief Delegate and Regional Delegates and to establish a schedule of meetings between these delegates, the Board of Governors and the Chief Justice of the Supreme Court, page 7 Ross M. Shepard

11. Delegate Resolution No. 6 - directs the Board of Governors to prepare and introduce amendments to ORS 9.136 through 9.155 to create positions of Chief Delegate and Regional Delegates, page 7 Keith Burns

(NOTE: This resolution will be introduced only if Delegate Resolution No. 4 is not approved by a two-thirds vote.)

12. Delegate Resolution No. 7 - directs the Board of Governors to submit legislation to repeal ORS Section 9.139 to and including ORS 9.155, which would eliminate the House of Delegates, page 7 Keith Burns
(NOTE: This resolution will be introduced only if Delegate Resolutions 4 or 6 fail.)

13. Delegate Resolution No. 9 - exempts frivolous bar complaints from public disclosure, page 7 Aida Iranzo
John Ransom

14. Delegate Resolution No. 10 - repeals DR 9-102 (Trust Account Overdraft Notification Program) page 8 Laurence E. Thorp

15. Delegate Resolution No. 11 - to approve sponsoring legislation to increase compensation of indigent defense lawyers, page 11 Steven H. Gorham
Gregory J. Hazarabedian

Other Resolutions

16. BOG Resolution No. 2 - In Memoriam, page 11 Kevin K. Strever

17. BOG Resolution No. 3 - to amend DR 2-101, DR 2-102, DR 2-104 and DR 10-101 - advertising rules to include reference to electronic communication, page 11 James L. Sutherland
Nancy Moriarty

18. Delegate Resolution No. 2 - to amend DR 5-106(B) and (C) - permits lawyer-mediators to file in court stipulated orders or judgments to implement settlement agreements they drafted, page 13 Susan D. Isaacs

19. Delegate Resolution No. 3 - to adopt DR 8-101(C) - recognizes legislative immunity granted state and federal legislators under Article IV, Section 9 of the Oregon Constitution and Article 1, Section 6 of the U.S. Constitution, page 13 Ira Zarov

20. BOG Resolution No. 4 - to amend HOD Rule of Procedure 5.4 - changes delegate resolution deadline from 30 to 45 days before meetings of the House, page 14 Mark A. Johnson

21. Delegate Resolution No. 5 - regarding attacks on trial lawyers, page 15 Stephen Piucci

22. Delegate Resolution No. 12 - to reaffirm the bar's strong support for Oregon's current constitutional and statutory structure for the selection and election of judges, page 15 Robert C. Hansen

Emerging Issues

23. Update on activities of BOG/HOD Strategic Planning Task Force, page 15 Gordon E. Davis

24. Update on Legal Technicians Issue page 15 Richard C. Baldwin

Informational Items

25. Update on Judicial Election Reform Initiatives, page 16 Kevin T. Lafky

26. Update on Changes in Affirmative Action Program, page 17 John Paul (Toby) Graff
Ronald G. Guerra

27. Update on Study of Trust Account Overdraft Notification Program, page 17 Mark A. Johnson

28. Update on Study of Bar Rule of Procedure 3.2(g), page 18 Edwin A. Harnden

29. Update on BOG Resolution No. 3 adopted at the 1997 HOD meeting (Campaign for Equal Justice), page 18 Richard C. Baldwin


Items with Financial Impact

Board of Governors 1999 Fee Resolution (Agenda No. 5)

It is hereby resolved by the Board of Governors of the Oregon State Bar that the 1999 annual membership fees and Client Security Fund assessment be unchanged from 1998 and shall be as follows:

1. Active Members.

A. For members admitted in any jurisdiction before January 1, 1997: $321.00 for the basic membership fee; $30.00 for the Affirmative Action Program fee; and $15.00 for the Client Security Fund assessment; for a total of $366.00.

B. For members admitted in any jurisdiction before January 1, 1997, who fail to pay their active fees and assessments of $366.00 by February 1, 1999: $371.00 for the basic membership fee; $30.00 for the Affirmative Action Program fee; and $15.00 for the Client Security Fund assessment; for a total of $416.00.

C. For members admitted in any jurisdiction on or after January 1, 1997: $272.00 for the basic membership fee; $15.00 for the Affirmative Action Program fee; and $15.00 for the Client Security Fund assessment; for a total of $302.00.

D. For members admitted in any jurisdiction on or after January 1, 1997, who fail to pay their active fees and assessments of $302.00 by February 1, 1999: $314.00 for the basic membership fee; $15.00 for the Affirmative Action Program fee; and $15.00 for the Client Security Fund assessment; for a total of $344.00.

E. For those members admitted in Oregon in 1999, the fees shall be apportioned. The Client Security Fund assessment of $15.00 shall be paid in full by each new admittee.

F. For those members who pass away in 1999, the fees shall be apportioned upon request of appropriate representatives. The Client Security Fund assessment of $15.00 and the increase of fees due to payment made after February 1, 1999, shall not be included in the apportioned refund.

G. Exemptions to active member fees:

(1) Members who were admitted to practice law in Oregon prior to January 1, 1949, are exempt from the basic membership fee and the Affirmative Action Program fee. These members are not exempt, based on admittance date, from the Client Security Fund assessment and must pay the Client Security Fund assessment of $15.00.

(2) Members who are on active military duty in compliance with the terms of ORS 408.450 are exempt from the payment of all active membership fees and assessments. Members who are in the VISTA or Peace Corps programs in compliance with Board of Governors Policy 10.302 are exempt from the payment of all active membership fees and assessments. The payment of active membership fees may also be waived if members satisfy the requirements of Board of Governors Policy 10.301 on hardship exemptions.

2. Active Emeritus Members.

A. For members admitted to practice law in any jurisdiction before January 1, 1984, who do not engage at any time in the practice of law except for providing annually a minimum of 40 hours of pro bono legal services to indigent clients referred by Oregon State Bar certified Pro Bono programs: $95.00. The fee includes an allocation of $80.00 for the basic membership fee and $15.00 for the Client Security Fund assessment. A listing of programs available for participation by members in this category shall be maintained by the Executive Director of the Oregon State Bar.

B. For those active emeritus members who fail to pay their active emeritus fees and assessments of $95.00 by February 1, 1999: $92.00 for the basic membership fee; and $15.00 for the Client Security Fund assessment for a total of $107.00.

3. Active Retired.

For members admitted to practice law in Oregon prior to January 1, 1959, who do not engage at any time in the practice of law except for pro bono legal services to indigent clients referred by Oregon State Bar certified Pro Bono programs, volunteer service as bar counsel, or as a member of the SPRB or other disciplinary entity, the same fees and assessments as established for active emeritus members in paragraph 2 above.

4. Inactive Members.

A. The 1999 membership fee for inactive members shall be $80.00.

B. For those inactive members who fail to pay their fees of $80.00 by February 1, 1999: $92.00.

C. Exemptions to inactive member fees:

(1) Members who were admitted in Oregon prior to January 1, 1949.

(2) Members in active military duty in compliance with the terms of ORS 408.450 are exempt from the payment of inactive membership fees. Members who are in the VISTA or Peace Corps programs in compliance with Board of Governors Policy 10.302 are exempt from the payment of inactive membership fees. The payment of inactive membership fees may also be waived if members satisfy the requirements of Board of Governors Policy 10.301 on hardship exemptions.

5. Payment Date: All fees and assessments shall be paid simultaneously, in one remittance, not later than February 1, 1999, or within 60 days of date of admission to the Oregon State Bar, whichever occurs last.

6. Definitions: Apportioned fees pertain only to those members admitted in Oregon or who passed away during calendar year 1999. If the member is admitted or passes away in January, the apportioned fee or refund, as the case may be, shall be 12/12; February shall be 11/12; ...; December shall be 1/12. The calculation shall be rounded up to the nearest dollar for each fee allocation.

Approved by the Board of Governors on July 25, 1998, at Baker City, Oregon

Presenter: Edward Jones

Delegate Resolution No. 8 (Agenda No. 6)

Whereas, Law-related education is proven to be a highly effective way of preventing juvenile delinquency and instilling ethical values and respect for the law among our youth;

Whereas, Direct lawyer involvement in teaching law and civics to students enhances the effectiveness of lawyers as contributing citizens and community leaders;

Whereas, Direct lawyer involvement in teaching law and civics to students is one of the most, if not the most, effective ways to demonstrate the value of the legal profession to the community at large;

Whereas, The Classroom Law Project - originally formed in 1974 as a joint project of the Oregon State Bar and Portland Public Schools - serves the people of Oregon and the members of the Oregon State Bar by providing law-related and civic education to Oregon elementary, middle and high school students;

Whereas, The Classroom Law Project is recognized nationally as a model law-related education program, and has a proven track record making it the most efficient and cost-effective means of providing law-related education;

Whereas, The American Bar Association selected Marilyn Cover, the current executive director of the Classroom Law Project, as the 1998 recipient of the Isadore Starr Award for Excellence in Law-Related Education;

Whereas, The Classroom Law Project serves an average of 15,000 Oregon school students each year, two-thirds of which are in the Portland metropolitan area;

Whereas, The Classroom Law Project sponsors the following programs and services:

Mock Trial (1,400 students, 500 attorneys)

Statewide Law-Related Education Conference for teachers, law enforcement officers and lawyers (125-150 educators)

Summer Teacher Institute (25 educators)

Street Law - law students teaching high school students (15-20 law students, 600 high school students)

Court Tours for students in grades 5 through 12 (3,000 students)

'We the People' program (2,250 students [via books]; 300 high school students; 240 middle school students; 60 teachers trained)

Law Day Conference (800-1,000 high school students, 20 speakers)

Youth Summit (120 at summit; 600-800 classroom students)

Lending Library and Technical Assistance

LEXpress newsletter (3,500 circulation)

Legal Citizen Dinner (330, mostly attorneys, some students and teachers)

International Civics Exchange (Czech Republic)

Curriculum Development

Whereas, Oregon State Bar funding to the Classroom Law Project, which it began providing in 1980, has ranged from $1,000 to $9,600 annually and in the past two years has been $6,100;

Whereas, The House of Delegates recognizes the need to make Classroom Law Project programs available to all Oregon students;

Whereas, The Classroom Law Project, if provided sufficient additional funding, could expand its existing programs to all areas of the state; now, therefore, be it

Resolved, That the House of Delegates urges the Board of Governors to recognize the Classroom Law Project as a key component of its ongoing commitment to public service, the professional and personal enrichment of Oregon lawyers, and the enhancement of the image of the legal profession; and

Resolved, That the House of Delegates urges the Board of Governors to provide additional funding to the Classroom Law Project for the primary purpose of allowing it to expand its programs and services to serve all communities of the state.

Presenters: Barnes H. Ellis
Daniel E. O'Leary


Resolutions with Legislative Implications

BOG Resolution No. 1 (Agenda No. 7)

Resolved, That the OSB House of Delegates approves the following change to Rule 3.1 of the Rules of Procedure for the House of Delegates:

3.1 Delegates shall be selected as provided in the Bar Act and the bylaws and policies of the State Bar. There shall be no alternate delegates. Section and committee delegates may appoint an alternate delegate from their section executive committee or committee to represent them at the upcoming House of Delegates at which they are slated to be a delegate. Local bar presidents may appoint an alternate delegate from their local bar association membership to represent them at the upcoming House of Delegates meeting at which they are slated to be a delegate.

Background

The Board of Governors is asking the House of Delegates to approve a change to HOD Rule of Procedure 3.1 to allow section and committee chairs and local bar presidents to designate an alternate to attend House of Delegates meetings in their absence.

ORS 9.136(3) and (4) provide that section and committee chairs and local bar presidents are ex officio voting delegates. HOD Rule 3.1 states that there shall be no alternate delegates. HOD Rule 8.1 states that cumulative voting and voting by proxy are not permitted.

Adoption of the proposed amendment could permit section and committee chairs and local bar presidents to select another person from the section executive committee, committee, or local bar membership to serve in the House should the chair or local bar president not be able to attend a meeting of the House. This would help the House conduct its business by increasing the odds of obtaining a quorum and would ensure that all sections, committees and local bar associations were represented at each meeting of the House.

Presenter: Edwin A. Harnden

Delegate Resolution No. 13 (Agenda No. 8)

Resolved, That the Oregon State Bar urges the Legislature to amend ORS 9.136 by the addition of the following subsection:

*(10) If an elected delegate notifies the executive director not less than 30 days before a meeting of the house that the delegate will not be able to attend the meeting, the board of governors may appoint an alternate to attend that meeting in place of the delegate. The board shall make the appointment from among the members of the bar who ran for election as delegate in the last preceding delegate election. Any alternate appointed by the board of governors shall serve as delegate only at the next meeting of the house following the appointment. The alternate shall have all the powers and duties of an elected delegate at the meeting of the house for which the delegate has been appointed.*

Presenter: Charles F. Hinkle

Delegate Resolution No. 1 (Agenda No. 9)
Crime Victims' Bill of Rights

Resolved, That the Oregon State Bar urges the Legislature to submit to the voters, and the voters to adopt the following amendment to Article I of the Oregon Constitution:

Crime Victims' Bill Of Rights

Article I of the Oregon Constitution is amended as follows:

Rights of victims of crime. That in criminal prosecutions, the victim shall be accorded fairness, dignity and respect by the officers, employees and agents of the State of Oregon and its political subdivisions and officers of the courts and, as the Legislative Assembly may define and provide by law, may be accorded rights to reasonable and appropriate notice, information, restitution, protection, and access to a meaningful role in the criminal justice process. These rights include the following:

1. The right to be treated with dignity, respect, and fairness throughout the criminal justice process.

2. The right to notification of court proceedings.

3. The right to communicate with the prosecution.

4. The right to make a statement to the court at sentencing.

5. The right to information about the conviction, sentence, imprisonment, and release of the accused.

6. The right to timely disposition of the case following the arrest of the accused.

7. The right to be reasonably protected from the accused throughout the criminal justice process.

8. The right to be present at the trial and all other court proceedings on the same basis as the accused, unless the victim is to testify and the court determines that the victim's testimony could be materially affected if the victim hears other testimony at the trial.

9. The right to have present at all court proceedings, subject to the rules of evidence, an advocate or other support person of the victim's choice.

10. The right to restitution.

This section does not confer upon any person a right to appeal or modify any decision in a criminal proceeding, does not abridge any other right guaranteed by the Constitution of the United States or this Constitution, and does not create any cause of action for compensation or damages against the State of Oregon or any of its political subdivisions, any officer, employee or agent of the State of Oregon or any of its political subdivisions, or any officer of the court.

Background

The Oregon Supreme Court in Armatta v. Kitzhaber, 327 Or 250 (1998), held unconstitutional the so-called 'crime victims rights' initiative adopted by the voters in 1996 as Ballot Measure 40. The court's ruling was on the ground that Ballot Measure 40 contained two or more constitutional amendments that must be voted on separately under Art. XVII of the Oregon Constitution.

Ballot Measure 40 was a hodgepodge of provisions purporting both to extend the rights of crime victims and to restrict the rights of criminal defendants in many ways. The Oregon State Bar House of Delegates in 1996 adopted Resolution No. 14 opposing Ballot Measure 40, primarily on grounds of its unreasonable restrictions on the rights of criminal defendants.

It is anticipated that efforts will be made in the 1999 Legislature to re-submit the substance of Ballot Measure 40 to the voters in a manner complying with the procedural requirements of the Oregon Constitution. There is substantial public support in Oregon and other states for a constitutional definition of rights of victims in criminal cases. The most effective opposition to a radical measure like Ballot Measure 40 may be to urge the adoption of a fair and reasonable 'bill of rights' for crime victims. The proposed resolution is intended to accomplish that goal.

According to the National Victim Center, 29 states have adopted a victims' rights constitutional measure. Two other states have such measures on the ballot this year. The proposed Oregon Constitutional Amendment submitted herewith is based on the Illinois and Virginia Constitutions. Items 1-10 in the proposed Oregon measure come from the Illinois Constitution, Art. I, 8.1 (1992), and the preamble and final paragraph are substantially identical to language in the Virginia Constitution, Art. I, 8-A (1996).

Other states with similar provisions in their constitutions include Alaska, Art. 2, 24 (1994); Arizona, Art. 2, 2.1(1990); Connecticut, SJR 13 ratified by the voters in 1996; Idaho, Art. I, 22 (1994); Michigan, Art. I, 24 (1988); Missouri, Art. 1, 32 (1992); New Mexico, Const. 24 (1992); South Carolina, Art. I, 24 (1996) and Texas, Art. I, 30 (1989). Similar measures will be before voters in November 1998 in Louisiana and Tennessee.

The Oregon State Bar should perform a public service by recommending to the Legislature and the voters the adoption of a constitutional amendment having a fair and reasonable statement of rights of crime victims in criminal proceedings. The proposed resolution is such a statement and should be supported by the House of Delegates.

Presenter: Carl R. Neil

Delegate Resolution No. 4 (Agenda No. 10)

Resolved, That the Oregon State Bar House of Delegates Rules of Procedure are amended as follows:

Add Rule 5.8. As the last item of business of the annual meeting of the House of Delegates, an elected delegate shall be chosen by vote to be Chief Delegate of the House of Delegates for the following year. The duties of the Chief Delegate shall include: Planning and coordination of interim meetings of Regional Delegates and assuring the orderly, deliberative process of the House.

Rule 5.9. Within sixty days of the annual meeting, the delegates from each region shall elect a Regional Delegate. The Regional Delegate is responsible for calling meetings of the regional delegation and attending interim meetings of the Regional Delegates of the House of Delegates.

Rule 5.10. The Chief Delegate and Regional Delegates shall meet between each annual meeting of the House. One meeting shall be with the Board of Governors to review action taken on issues decided at preceding annual or special meetings and one meeting shall be with the Board of Governors to discuss agenda issues for upcoming meetings of the House of Delegates. The Chief Delegate may convene additional meetings of the Regional Delegates at his or her discretion. The President shall invite the Chief Justice to interim meetings of the Chief and Regional Delegates of the House of Delegates and the Board of Governors.

Presenter: Ross M. Shepard

Delegate Resolution No. 6 (Agenda No. 11)

Resolved, That the Oregon State Bar House of Delegates does, under the provisions of ORS 9.139(1)(b), hereby direct the Board of Governors to prepare and introduce for the 1999 Regular Session of the Oregon Legislature the following as amendments to ORS 9.136 through 9.155:

1) At the Annual Meeting of the House of Delegates as the last item of business of the annual meeting of the House of Delegates, an elected delegate shall be chosen by vote to be Chief Delegate of the House of Delegates for the following year. The duties of the Chief Delegate shall include: Planning and coordination of interim meetings of Regional Delegates and assuring the orderly, deliberative process of the House.

2) Within sixty days after the annual meeting, the delegates from each region shall elect a Regional Delegate. The Regional Delegate is responsible for calling meetings of the regional delegation and attending interim meetings of the Regional Delegates of the House of Delegates.

3) The Chief Delegate and Regional Delegates shall meet between each annual meeting of the House. One meeting shall be with the Board of Governors to review action taken on issues decided at preceding annual or special meetings and one meeting shall be with the Board of Governors to discuss agenda issues for upcoming meetings of the House of Delegates. The Chief Delegate may convene additional meetings of the Regional Delegates at his or her discretion. The President shall invite the Chief Justice to interim meetings of the Chief and Regional Delegates of the House of Delegates and the Board of Governors.

Background

Directs the Board of Governors to prepare and introduce amendments to ORS 9.136 through 9.155 to create positions of Chief Delegate and Regional Delegates. (This resolution will be introduced only if Delegate Resolution No. 4 is not approved by a two-thirds vote.)

Presenter: Keith Burns

Delegate Resolution No. 7 (Agenda No. 12)

Resolved, That the House of Delegates of the Oregon State Bar, under the provisions of ORS 9.136(1)(b), does hereby direct the Board of Governors to prepare and submit to the 1999 Regular Session of the Oregon Legislature legislation to repeal ORS Sections 9.139 to and including ORS 9.155 and any other references to the House of Delegates in the Oregon Revised Statutes.

The Board of Governors is further directed to support and provide the necessary resources of the Oregon State Bar to accomplish the passage of the directed legislation.

Background

Directs the Board of Governors to submit legislation to repeal ORS 9.139 to and including ORS 9.155, which would eliminate the House of Delegates. This resolution will be introduced only if Delegate Resolutions 4 and 6 fail.

Presenter: Keith Burns

Delegate Resolution No. 9 (Agenda No. 13)

Whereas, The membership of the Oregon State Bar's Criminal Law Section is composed of both defense attorneys and prosecutors;

Whereas, On April 18, 1998, the Criminal Law Section conducted a straw poll of its members. The results of the poll indicate that 94 percent of its membership supports legislation which would exempt frivolous bar complaints from public disclosure;

Whereas, The Criminal Law Section's strong support indicates that the bar's membership, as a whole, would overwhelmingly support such legislation; and,

Whereas, Frivolous judicial fitness complaints are exempt from public disclosure but may not be if simultaneously filed against judges in their capacity as attorneys as bar complaints; now, therefore, be it

Resolved, That during the 1999 legislative session the Oregon State Bar shall sponsor legislation that:

1. Exempts frivolous bar complaints from public disclosure; and,

2. Defines 'frivolous bar complaint' as one which disciplinary counsel does not refer to the applicable local professional responsibility committee; and,

Resolved, That bar staff and the Board of Governors shall work in conjunction with the Criminal Law Section's Executive Committee and any other interested bar committees and external organizations for passage of this legislation.

Presenters: Aida Iranzo
John Ransom

Delegate Resolution No. 10 (Agenda No. 14)

Whereas, The Oregon State Bar and the Oregon Supreme Court adopted DR 9-102 implementing the Trust Account Overdraft Notification Program in 1994; and,

Whereas, The program has a significant cost to the Bar and to affected lawyers who are not guilty of any or only technical ethical violations; and,

Whereas, The program generally affects only sole practitioners and small law firms; and,

Whereas, The House of Delegates finds the program misleads the public into believing it provides a significant level of protection from lawyer conversion of trust funds when in fact it does not; now, therefore, be it

Resolved, By the Oregon State Bar House of Delegates, that DR 9-102 be and it hereby is repealed.

Background

At the September 27, 1997, Oregon State Bar House of Delegates meeting, the House passed a resolution directing the Board of Governors to study the trust account overdraft notification program embodied in DR 9-102 and make a report and recommendation whether to continue the program to the House at the 1998 annual meeting. The board has done so, and recommended that the program be continued. As the author of the original resolution, it is my belief that there was no objective or independent analysis by the board and that its report does not accurately reflect the cost or benefits of the program. It is the purpose of this memorandum to analyze the board report and urge the repeal of DR 9-102, eliminating the trust account overdraft notification program.

Background:

For the past three years, I have served on the State Professional Responsibility Board, which reviews complaints of ethical violations by lawyers and determines whether they will be prosecuted. During the first two years of my tenure, the staff would write a report and make a recommendation to the SPRB regarding nearly all trust account overdraft notices received by disciplinary counsel's office which did not result from bank error. I began to have serious doubts about whether the program was cost-effective or provided any real protection to the public.

Because of my doubts about the value of the program (which were shared by some other members of the SPRB), I submitted the 1997 resolution to the House of Delegates directing the study and recommendation. I hoped the board would seriously evaluate the program. Unfortunately, it appears that there was little, if any, independent study done of the program. The report accompanying the recommendation of the Board of Governors was largely written less than a week after the 1997 annual meeting of the House of Delegates. Attached,* is a memorandum from disciplinary counsel's office outlining the analysis of the program dated October 3, 1997, which is used nearly verbatim to justify the board's recommendation. That memorandum was submitted to the board in November 1997 and with very few modifications was approved by the board at its April 1998 meeting along with its recommendation to retain the program. Apparently no one participated in the process who had any serious question about the value of the program. It clearly received no independent scrutiny.

Statistics:

The report notes that the Bar received 455 overdraft notices from March 1994 through December 31, 1997. It does not identify how many lawyers were involved. Since one error often results in more than one overdraft, it probably is safe to assume that the number of lawyers involved over nearly four years is significantly less that 455.

The statistics presented in the report are somewhat confusing since they are generally broken down by the number of overdrafts rather than the number of lawyers. For example, the report suggests that there were 46 admonitions. However, that is the number of overdrafts involved and not the number of lawyers. The actual number of lawyers admonished was thirty-seven.

In addition, the report notes that there were reprimands, suspensions or Form B resignations related to 26 overdrafts. But only 11 lawyers were disciplined or resigned in matters involving overdrafts. In a number of those cases there is little connection between the overdrafts and the disciplinary action taken.

Four lawyers received reprimands for substantial mismanagement of their trust accounts over a prolonged period. None involved any willful or intentional misconduct or conversion of client funds. All resulted from the lawyers' failure to keep adequate records or reconcile their trust accounts. Two of the four lawyers were partners and both were reprimanded for the same conduct.

A total of four lawyers received suspensions for unethical conduct which included trust account violations. Two of the four lawyers' misconduct was detected because of overdrafts. The other two had other serious problems and the trust account violations were incidental. In one case, there were three trust account violations out of a total of 23 counts of misconduct. In the second case, there was one trust account violation out of eight acts of misconduct.

The remaining two cases involving suspensions were detected as a result of overdraft notifications. In one case, the suspension resulted as much from the attorney's refusal to cooperate with the Bar in violation of DR l-103(C) as it did from the trust account problem. In the other case where the notification did trigger prosecution, the attorney involved was suspended for using his trust account to manage his personal funds in order to avoid garnishment by the Internal Revenue Service for back taxes.

The report notes that there were three Form B resignations involving trust account violations. Two of the three investigations were triggered by overdraft notifications. The third attorney who submitted a Form B resignation was being investigated for misconduct unrelated to the trust account when the trust account violation was discovered.

In summary, the program resulted in reprimand of four lawyers in three law firms for mismanagement of the trust account. The program also led to discovery of misconduct by four lawyers, who were suspended or submitted Form B resignations. It is unclear whether the misconduct of most, if not all, of the suspended and disbarred lawyers would have been discovered eventually without the trust account overdraft notification program.

Analysis of Specific Concerns:

The report analyses the specific concerns raised by the resolution and its supporters and generally rejects each as unfounded or insignificant. Outlined below is a response of that analysis.

1. A large number of overdrafts are a result of bank error. Is it cost-effective to spend significant staff time investigating these matters?

Although the report suggested that there were 118 overdrafts resulting from bank error, the number was actually 125. The report states that 'the errors are very quickly detected and consume very little staff time. '

There is no statistical basis for this statement. It is based on the opinion of disciplinary counsel who authored the report immediately following the 1997 House of Delegates meeting. The board could easily have determined the average time for handling cases in the one year it was given to study the program. It failed to do so.

2. Is the overdraft program uncovering lawyer misconduct or is investigative time spent on minor matters of bookkeeping and accounting error?

The report states that it was never contended by the Bar that the overdraft program 'would catch large numbers of misappropriating lawyers. ' The report states that the purpose of the program is to provide 'an early warning signal' regarding 'inappropriate accounting practices before they develop into more serious forms of misconduct.' Although that may be the purpose, there is absolutely no evidence to support the suggestion that it is being achieved.

The report states that overdrafts resulting in some form of discipline 'constitutes 16% of the total number of overdrafts.' The report fails to point out, however, what percentage of the lawyers involved in overdrafts were disciplined. It is noteworthy, however, that the 48 lawyers receiving admonitions, reprimands, or other forms of discipline accounted for 72 of the 455 overdrafts. It is probably safe to assume that the percentage of lawyers for whom overdraft notifications were given which resulted in discipline was substantially less than 16%. If you throw out the admonitions for what are really technical violations only eleven lawyers were disciplined, which probably constitutes a very small percentage of the lawyers who had overdrafts.

3. Do many of these findings of misconduct involve minor technical trust account problems rather than 'lawyers who are bad' by any moral measure? If so, should the Bar concentrate on more serious matters?

The report acknowledges that 'many of the admonitions' were for 'technical' violations. The fact of the matter is that 45 of the 46 overdrafts resulting in admonitions were for either premature withdrawal of funds deposited in trust or accounting problems. All four reprimands also involved accounting and record keeping problems and none involved any form of conversion or similar misconduct. None of the four attorneys who were suspended for misconduct including trust account violations were charged with conversion of client funds either.

Conversion was involved in each of the three Form B resignation cases.

4. Is there a disparity in the impact of the program between small firms that have relatively small trust account balances such that accounting errors reported to the Bar, and big firms where the same kind of errors may occur but are not reported to the Bar because account balances are typically large enough to avoid overdraft?

No effort was made to identify the size of firms involved. From my own experience, I recall only one instance in which an overdraft notification occurred involving a firm of more than three or four lawyers and in most cases, they were sole practitioners. This is pointed out by the fact that of the 11 lawyers disciplined for trust account violations, nine were sole practitioners and the other two were partners in a two-member partnership. I believe that it is safe to say that well over 95% of all overdraft notices involve sole practitioners or very small firms.

5. Is the educational value provided to members by the overdraft program significant and if so can it be offered in a less intimidating and mandatory manner?

The report suggests that the program has raised 'the level of awareness among Bar members of the proper method of handling client money in trust accounts.' No evidence is offered in support of that conclusion. One would assume, however, that if the statement is accurate the number of overdraft notices would have been declining over the approximately four years of the program. That simply is not true. Following is a list of the number of overdraft notices received by the Bar for the years in question:

Year Overdrafts

1994 (10 months) 94
1995 116
1996 123
1997 122
1998 (6 months) 50

Whatever the educational value of the program it is not apparent that it is resulting in a significant decline of overdraft notices to the Bar.

More importantly, the report fails to consider other ways to provide the education or whether it is even needed. Any meaningful analysis would consider both issues.

6. Does the gain derived from the program justify the staff time and expense spent in program administration?

The report estimates that overdraft notices unrelated to bank error take an average or 2 hours of staff time to process. The report states that overdrafts resulting from bank error are quickly identified and take little staff time. The Bar has no data to support these statements. It could easily have been measured before preparing the report. At my request disciplinary counsel has calculated the estimated salary cost associated with handling overdraft notifications, based on the assured two hours per overdraft, at $860 per month. Of course, that does not include overhead.

What the analysis also fails to consider is the amount of attorney time spent in responding to inquiries from disciplinary counsel concerning overdrafts. If you assume that it takes two hours of attorney time responding to each overdraft notice (which may be conservative for the reasons outlined below) and a billable hourly rate of $125, the program costs attorneys $2,500 a month in billable time, even though a very small percentage are guilty of even a technical violation, let alone anything substantive.

When disciplinary counsel's office receives notification of a trust account overdraft, it contacts the responsible attorney and requests that the attorney provide an explanation supported by trust account records and bank statements. When the attorney receives the request the attorney has to review all appropriate records, assemble them, copy them, and forward them to the Bar with a written explanation. It is not uncommon for a trust account overdraft to result from an error that occurred months prior to the time the overdraft showed up because of other funds in the trust account. In those instances, the attorney may have to go back through months of trust account records and bank statements to identify the problem.

When the response is received by disciplinary counsel, it is reviewed and a written report analyzing the overdraft is prepared. If the staff concludes that there is probable cause to believe an ethics violation has occurred, the report is forwarded to the SPRB, which reviews the report at its monthly meeting. The SPRB decides whether to prosecute.

Although I can provide no better estimate of cost than that provided by the Bar, I suspect that the numbers are significantly higher than outlined above.

Conclusion:

It is clearly open to debate whether the program should be continued or terminated. I had hoped when I sponsored the resolution directing the board to study the program that there would be an objective analysis presenting all points of view. It appears that there was virtually none. The staff report was prepared within one week of the 1997 annual meeting and was ultimately adopted by the board with almost no revision. No attempt was made to accurately measure the amount of staff time or cost associated with the program.

I have attempted, as best I could, to do my own analysis of the statistics available to me to present what I hope is at least a more balanced view and one that will stimulate discussion by the House regarding the value of the program. I personally believe that if it does, it will conclude the program has little value, is not cost-effective and misleads the public into believing it provides a level of protection which it does not. DR 9-102 should be repealed.

Presenter: Laurence E. Thorp

Delegate Resolution No. 11 (Agenda No. 15)

Resolved, That the Oregon State Bar will sponsor legislation as a Bar bill at the 1999 Legislative Session that provides that:

1. Trial and appellate public defender attorneys and their staff be compensated with pay and benefits at a rate equal to their counterparts in District Attorney offices and the Attorney General's office;

2. The hourly rate for Court-appointed counsel be statutorily increased to a minimum of $75 per hour.

Resolved, That the Oregon State Bar shall lobby for the passage of this legislation in conjunction with the Oregon Criminal Defense Lawyers Association.

Presenters: Steven H. Gorham
Gregory J. Hazarabedian


Other Resolutions

BOG Resolution No. 2 (Agenda No. 16)

Resolved, That the OSB House of Delegates and members assembled stand for a moment of silence in honor or the members of the Oregon State Bar who have died since the 1997 House of Delegates Meeting.

In Memoriam

William D. Allen, Tigard

Sidney A. Bartels, Gresham

Bernard F. Bednarz, Salem

Frank G. Breuer, Lake Oswego

Robert M. Burrows, Grants Pass

Clifford N. Carlsen, Portland

Merwin A. Cascaden, Portland

Ruth M. Cinniger, Macedonia

William E. Craig, Tualatin

Hon. William M. Dale, Portland

Ben Day, Gold Hill

Fred B. Duffy, Tigard

Margaret O. Ebers, Portland

C.S. Emmons, Albany

Lloyd B. Ericsson, Portland

Harold B. Foxworth, Portland

Hugh E. Gallagher, Portland

Gerson F. Goldsmith, Portland

Charles H. Heltzel, Portland

Lewis Hoffman, Eugene

Jack D. Howe, Portland

R.L. Hurtig, Portland

Frank Josselson, Portland

Gordon H. Keane, Portland

Joseph M. Kosydar, Eugene

Hon. Donald H. Londer, Portland

C.E. Luckey, Beaverton

JoAnna E. McNamara, Lake Oswego

Alva J. Morris, Eugene

J. Robert Nelson, Portland

Urlin S. Page, Salem

Charles A. Phipps, Neskowin

Donald A.W. Piper, Klamath Falls

Watson D. Robertson, Lake Oswego

Edward Lee Rogers, Washington, D.C.

A. Ben Sanchez, Portland

James G. Smith, Portland

Stephen J. Smith, Lake Oswego

Norman A. Stoll, Portland

Joan VanAlmen, Lake Oswego

Lee M. Zittenfield, Portland

Presenter: Kevin K. Strever

BOG Resolution No. 3 (Agenda No. 17)

Resolved, That the OSB House of Delegates approves the following disciplinary rule changes for submission to the Oregon Supreme Court.

Disciplinary Rule 2
Advertising, Solicitation and Legal Employment

DR 2-101 General Rules Regarding Communications About a Lawyer or Law Firm

(A) A lawyer shall not make or cause to be made any communication about the lawyer or the lawyer's firm, whether in person, in writing, electronically, by telephone or otherwise, if the communication:

(1) Contains a material misrepresentation of fact or law, or omits a statement of fact or law necessary to make the communication considered as a whole not materially misleading; or

* * *

(B) A lawyer who approves the use of a communication about the lawyer or the lawyer's firm shall keep or cause the lawyer's firm to keep a copy of any written or electronic communication and a recording of any communication by use of electronic media, including radio, television and microwave transmission, along with a record of when and where the communication was used, for a period of two years after its last dissemination.

(C) An advertisement An unsolicited communication about a lawyer or the lawyer's firm in which services are being offered must be clearly and conspicuously identified as such an advertisement unless it is apparent from the context that it is an advertisement.

(D) A lawyer shall not initiate any personal, telephone, electronic or written communication with a person for the purpose of obtaining professional employment if:

(1) The lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer; or

(2) The person has made known to the lawyer a desire not to receive communications from the lawyer; or

(3) The communication involves coercion, duress or harassment.

(E) All advertisements An unsolicited communication about a lawyer or the lawyer's firm in which services are being offered must clearly identify the name and office address and post office box or street address of the office of the lawyer or law firm whose services are being offered to the public.

(F) A lawyer may pay others for disseminating or assisting in the dissemination of communications about the lawyer or the lawyer's firm only to the extent permitted by DR 2-103.

(G) A lawyer may not engage in joint or group advertising involving more than one lawyer or law firm unless the advertising complies with DR 2-101, DR 2-103 and DR 2-104 as to all involved lawyers or law firms. Notwithstanding this rule, a bona fide lawyer referral service need not identify the names and addresses of participating lawyers.

(H) Except as provided in DR 2-104, Aan unsolicited written communication, including a communication sent via electronic mail, to a prospective client who is known to be in need of legal services with respect to a particular matter and who is not a close friend, relative, current client, or one with whom the lawyer has a current or prior professional relationship shall be identified: (1) for written communications, on the envelope and on the bottom of each page by the word 'Advertisement,' printed in at least fourteen point bold type, which shall be larger and darker than the type used for the address on the envelope and in the text of the written communication; and (2) for communications sent via electronic mail, by including the word 'Advertisement' in type that is larger and darker than the type used for the text of the communication, if possible, or if that is not possible, then set off from the text at the beginning and end of the communication.

DR 2-102 Special Rules Regarding Firm Names and Letterheads

(A) A lawyer may use professional announcement cards, office signs, letterheads, telephone and electronic directory listings, legal directory listings or other professional notices so long as the information contained therein complies with DR 2-101 and other applicable disciplinary rules.

* * *

DR 2-104 Special Rules Regarding Personal and Telephone Solicitation

(A) Subject to the provisions of DR 2-101, a lawyer may initiate personal contact with a prospective client for the purpose of obtaining professional employment only in the following circumstances:

(1) If the prospective client is a close friend, relative, former client, or one whom the lawyer reasonably believes to be a client;

(2) Under the auspices of a public or charitable legal services organization; or

(3) Under the auspices of a bona fide political, social, civic, fraternal, employee, or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.

(B) For the purpose of DR 2-104, 'personal contact' means in-person or telephone contact or real time interactive communications such as conversations in internet chat groups and conference areas and video conferencing, with an individual or entity. Direct mail advertising and electronic mail are is not considered 'personal contact' under this rule, but is are otherwise subject to the requirements of DR 2-101.

Disciplinary Rule 10
Definitions

DR 10-101 Definitions

As used in the Disciplinary Rules of the Code of Professional Responsibility:

* * *

(J) 'Electronic communication' includes but is not limited to on-line legal lists and directories; web pages; messages sent to newsgroups, listservs and bulletin boards; messages sent via electronic mail; and real time interactive communications such as conversations in internet chat groups and conference areas and video conferencing.

Background

In recent years, the OSB Legal Ethics Committee has received a number of inquiries about the applicability of the advertising rules to Internet and other forms of 'cyber-advertising.' Rather than write an opinion, the Committee decided that the bar would be better served by revising the rules to make it clear that electronic communications about a lawyer or the lawyer's services are subject to the same rules as more traditional forms of communication.

Many of the proposed amendments are the simple insertion of the word 'electronic' in various places to make clear the scope of the rules. In DR 2-101(C) and (E), the words 'unsolicited written communication' are substituted for 'advertisement' to parallel the language in subsection (G).

The other change proposed for DR 2-101(E) was not generated by the increase in electronic communications. Rather, it was included by the Legal Ethics Committee because of several inquiries regarding the requirement to include an office address in all communications. Many lawyer practice from their homes and do not have or desire 'walk-in' traffic; other lawyers indicate that using a street address may complicate mail delivery in rural communities. However, the rule as it is currently written makes no allowance for lawyers with home offices or other situations where inclusion of a street address is not practical or desirable. On the other hand, ensuring that clients have a means to find their lawyers is also important. The proposed amendment would allow lawyers to include either a post office box or a street address in their communications.

DR 2-101(H) is proposed to be amended to require the same disclosure of 'Advertising' content on electronic mail as is required on unsolicited written communications sent. Where it is not possible to put the label in larger and darker type, the sender must set off the word 'Advertisement' from the rest of the text at the beginning and end of the communication.

Language is added to DR 2-104(B) to limit the application of the rule's no-contact provisions to 'real-time' communications that are more in the nature of a telephone or personal contact than a written communication.

Finally, a definition of 'electronic communication' is added to DR 10-101 as new subsection (J).

Presenters: James L. Sutherland
Nancy Moriarty

Delegate Resolution No. 2 (Agenda No. 18)

Whereas, The Oregon Family Law Legal Services Commission has been charged by the legislature with developing a plan for providing family law legal services to low and middle income families; and,

Whereas, The Commission was directed to address ethical and liability issues involved in allowing attorneys to play advisory and consultative roles as well as being advocates for their clients; now, therefore, be it

Resolved, That the OSB House of Delegates approves the following disciplinary rule changes for submission to the Oregon Supreme Court.

DR 5-106 Mediation

(A) A lawyer may act as a mediator for multiple parties in any matter if the lawyer clearly informs the parties of the lawyer's role and they consent to this arrangement.

(B) A lawyer serving as a mediator may draft, and may file in court, a settlement agreement, including a stipulated order or judgment to implement the settlement agreement, but must advise and encourage the parties to seek independent legal advice before executing it.

(C) A lawyer serving as a mediator may not act on behalf of any party in court nor represent one party against the other in the matter in mediation or in any related legal proceeding.

(D) A lawyer shall withdraw as mediator if any of the parties so request, or if any of the conditions stated in DR 5-106(A) are no longer satisfied. Upon withdrawal, the lawyer shall not continue to act on behalf of any of the parties in the matter that was the subject of the mediation.

Background

The 1997 Legislature created the Oregon Family Law Legal Services Commission and charged the Commission with the task of developing a plan for providing family law legal services to low and middle income families. The Commission was also directed to address ethical and liability issues involved in allowing attorneys to play advisory and consultative roles as well as being advocates for their clients.

In developing its plan, the Commission sought input from the Oregon State Bar's Legal Ethics Committee about potential ethical impediments to an attorney's ability to provide low income families with advisory and consultative services, including mediation.

The Oregon State Bar Legal Ethics Committee has informally opined that current language in DR 5-106 ('may not act on behalf of any party in court') precludes an attorney who is serving as a mediator from drafting or filing with the court a stipulated order or judgment. Most members of the Commission do not believe that the current language of DR 5-106 precludes such action by an attorney acting as a mediator. The Commission's proposed amendments to DR 5-106(B) and (C) eliminates any ambiguity in the interpretation of the rule by clarifying that an attorney who is serving as a mediator may draft and file a stipulated order or judgment which reflects an agreement reached by parties in mediation.

Presenter: Susan D. Isaacs

Delegate Resolution No. 3 (Agenda No. 19)

Resolved, That the Oregon State Bar House of Delegates requests the Board of Governors to formulate the following disciplinary rule for presentation to the Oregon Supreme Court, pursuant to ORS 9.490, as DR 8-101(C):

Notwithstanding the provisions of DR 8-101(A) or any other disciplinary rule, and consistent with the 'debate' clause, Article IV, section 9, of the Oregon Constitution, or the 'speech or debate' clause, Article 1, section 6, of the United States Constitution, the Oregon Supreme Court shall not subject a lawyer-legislator to discipline for words uttered in debate in either house of the Oregon Legislative Assembly or for any speech or debate in either house of the United States Congress.

Resolved, That the Oregon State Bar House of Delegates approves proposed DR 8-101(C) pursuant to ORS 9.490 for presentation to the Oregon Supreme Court.

Background

Disciplinary Rule 8-101 prohibits a lawyer who holds public office from engaging in certain conduct. Article IV, section 9, of the Oregon Constitution, states, in pertinent part, 'Nor shall a member for words uttered in debate in either house be questioned in any other place.' The United States Constitution, Article 1, section 6, has a similar provision for the protection of members of Congress. These provisions protect legislators from harassment and intimidation. DR 8-101 does not recognize either constitutional provision.

The doctrine of legislative immunity has its origins in the struggle between the English Crown and Parliament more than 500 years ago. In 1689, following the 'Glorious Revolution,' the legislative immunity that the members of Parliament had fought so hard to achieve was codified in the English Bill of Rights as:

That the Freedom of Speech, and Debates or proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament (quoted in Tenny v. Brandhove, 341 U.S. 367, 372 (1951)).

By the time of the American Revolution, the doctrine of legislative immunity involving speech or debate was such an integral part of legislative government that the Constitutional Convention adopted Article 1, section 6 without comment, debate or opposition. (Quoted in Powell v. McCormack, 395 U.S. 486, 502 (1969).) The Oregon Constitutional Convention of 1857 adopted Section 9, Article IV of the Oregon Constitution with very little debate and with no known opposition. (Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, Salem, Oregon (1926).)

Within the last several years, two complaints have been filed with the Oregon State Bar against lawyer-legislators. Although the lawyer-legislators against whom the complaints were filed were ultimately found not to have violated the Code of Professional Responsibility, in the process of reviewing one of the complaints, the Oregon State Bar reviewed how a legislator voted and what a legislator said on the floor of the respective chamber. This type of inquiry has a chilling effect on the legislative process, an effect that the foregoing provisions of the United States and Oregon Constitutions are intended to prevent.

This resolution is intended to ensure that a lawyer-legislator shall not be subject to discipline or even questioned for constitutionally protected legislative activity in an Oregon State Bar proceeding. This resolution is not intended to protect activity that is not constitutionally protected, such as bribery. Nor would it prohibit the Oregon State Bar from determining if in fact the activity in question is constitutionally protected legislative activity.

Presenter: Ira Zarov

BOG Resolution No. 4 (Agenda No. 20)

Resolved, That the Oregon State Bar House of Delegates approves the following amendment to HOD Rule of Procedure 5.4 to change the delegate resolution deadline from 30 to 45 days before meetings of the House.

Oregon State Bar House of Delegates Rules of Procedure

Rule 5 Agenda and Order of Business

5.4 A member of the House of Delegates may submit a question or measure for the agenda of any House of Delegates meeting by delivering a copy of the full text of the item to be presented, including a description of any financial impact, to the Executive Director at least thirty (30) forty-five (45) days in advance of the meeting at which it is to be presented.

Background

The Board of Governors approved submitting this resolution to the House of Delegates to amend HOD Rule of Procedure 5.4. Rule 5.4 allows delegates to submit resolutions 30 days prior to HOD meetings, while members must file resolutions 45 days in advance.

A 30-day cutoff for delegate resolutions provides inadequate time for bar staff and the printer to prepare and distribute an agenda within the time frame set forth in bar bylaws and BOG policies. These rules require that the agenda be mailed 20 days prior to HOD meetings. While the bar's bylaws and the board's policies can be changed by the BOG, the board must, pursuant to ORS 9.191(1), publish and distribute to the membership no later than 20 days prior to the annual meeting of the House of Delegates a notice of next year's membership fees. The bar currently distributes both this notice and the House agenda to all members at the same time. The bar would have to have two mailings (one of the House agenda and one for the membership fee notice) if it retained the current 30-day timeline for submission of delegate resolutions to the bar. In order to avoid a second mailing to all bar members and considering the relatively small impact this change will likely have on the House agenda process, the board requests the House to change HOD Rule of Procedure 5.4 as indicated.

Presenter: Mark A. Johnson

Delegate Resolution No. 5 (Agenda No. 21)

Resolution of the Oregon State Bar Regarding Attacks on Trial Lawyers

Whereas, The mission of the Oregon State Bar includes serving the public and the legal profession by promoting the administration of justice and encouraging the highest standards of integrity; and

Whereas, Our democracy and our freedom are guaranteed, preserved and protected by our American system of justice and the right to trial by jury; and

Whereas, It has been reported in the media and spokespersons for the U.S. Chamber of Commerce have acknowledged publicly that the U.S. Chamber of Commerce is launching a multimillion dollar media assault against the nation's trial lawyers; and

Whereas, Attacks such as these on trial lawyers are in fact attacks upon our American system of justice and the right to trial by jury; now, therefore, be it

Resolved, That the Oregon State Bar rejects and condemns campaigns to attack trial lawyers as a group. Campaigns such as these constitute an unwarranted attack upon our American system of justice itself and its guarantee of a jury trial, are inaccurate and prejudicial, misinform and mislead the public about the role of the lawyer in our system of justice, undermine public confidence in our system of justice, and demean the legal profession as a whole.

Background

In December 1997, the U.S. Chamber of Commerce announced it planned to launch an 'unprecedented, multimillion dollar campaign' to attack trial lawyers as 'greedy men' who use false victims to drive up the costs of goods and services for all consumers. Bar organizations around the country recognized that the public does not distinguish between lawyers and trial lawyers and that these attacks demean the legal profession and judicial system as a whole.

Bar associations in North Carolina, South Carolina, Boulder County, and Rhode Island have passed resolutions condemning these campaigns against lawyers. Other state bar associations are considering similar action. Local chambers of commerce, the American Bar Association, and other groups have also voiced their rejection of the attack demonizing lawyers. The Oregon State Bar should pass this resolution condemning this attack upon our system of justice and the right to trial by jury.

Presenter: Stephen Piucci

Delegate Resolution No. 12 (Agenda No. 22)

Whereas, The purpose of the Oregon State Bar is to:

Ensure the administration of justice for all and the advancement of the science of jurisprudence

Promote high standards of honor, integrity, professional conduct, professional competence, learning and public service among the members of the legal profession, thereby increasing the usefulness and efficiency of the Bar and its members

Ensure a spirit of cooperation between the Bench and the Bar

Provide a continuing program of all forms of legal education

Promote a respect for the law among the general public

Promote the application of the knowledge and experience of the profession to the public good

Do all other things incidental, necessary, convenient or expedient for the attainment of the purposes hereinabove set forth for the accomplishment of the duties and responsibilities imposed upon it by law and the rules of court;

Whereas, At the January 1998 special meeting of the House of Delegates the House adopted its resolution regarding the Bar's position on the proposed Judicial Election Reform Initiatives, now, therefore, be it

Resolved, That the Oregon State Bar reaffirms its strong support of the current constitutional and statutory structure for the selection and election of judges that guarantees an independent judiciary;

Resolved, That the Oregon State Bar is committed to having the State provide adequate resources for the operation of the Judicial Branch of government.

Presenter: Robert C. Hansen


Emerging Issues

Update on Activities of BOG/HOD Strategic Planning Task Force (Agenda No. 23)

Presenter: Gordon E. Davis

Update on Legal Technicians Issue (Agenda No. 24)

Should legal technicians unsupervised by lawyers be licensed in Oregon to deliver limited legal services to the public? This continues to be a complex and difficult question for the bar. On the one hand, an enormous demand for affordable legal services by the public far exceeds available services. On the other hand we want to protect the public from potential harm caused by individuals who are untrained and unregulated. We also want to remain independent and retain control of the provision of legal services. However, the legislature may act in this area whether we like it or not. Board members will briefly help frame the issues and invite discussions by the delegates. Where do delegates stand on the issue? What should our posture on the issue be during the next legislative session? What is the most effective way to get input on this issue from the membership?

Presenter: Richard C. Baldwin


Informational Items

Update on Judicial Election Reform Initiatives (Agenda No. 25)

The Board of Governors continues to work to implement BOG Resolution No. 3, adopted at the September 27, 1997, meeting, and BOG Resolution No. 3 to Implement Delegate Resolution No. 3, adopted at its January 17, 1998, Special Meeting. Both resolutions, which relate to the independence of the judiciary, are set forth below. The judicial election reform initiatives referenced in those earlier resolutions are for various reasons not being actively pursued at this time. However, the issues raised are likely to continue to resurface in a variety of forums and different forms. Furthermore, a modified version of the Judicial Council Initiative has recently been filed with the Secretary of State's office. The bar's general counsel, in conjunction with retained counsel, is pursuing bar challenges to this new measure. The board will continue to work to increase public understanding of our judicial system and the importance of an independent judiciary consistent with these resolutions.

The following resolution was adopted at the September 27, 1997, Meeting of the House of Delegates

Resolution Regarding Independent Judiciary

Whereas, An independent judiciary is the cornerstone of our constitutional system of government. If judges are subject to convenient removal simply as a result of an unpopular decision, the people's confidence in the ability of the courts to administer justice without regard to status, wealth, and race will certainly be lost. To protect the liberties of all, judges must be free to exercise their powers without fear of unfair reprisal;

Whereas, In Oregon judges are subject to scrutiny and are accountable to the people in many ways. Judicial decisions are matters of public record and many are justified in writing. Judges who are appointed by the Governor must run for re-election in the next election; all judges must run for re-election every six years. As elected officials, judges are also subject to recall; and

Whereas, Trial court decisions can be reviewed by a separate, impartial appellate court at the request of any party, and the appellate court will reverse the decision if errors affecting the outcome of the case have been made. Oregon judges are subject to scrutiny concerning ethics and fitness issues through the Judicial Fitness and Disability Commission. Judges are also subject to various restrictions and requirements under the Oregon Government Standards and Practices Act, ORS Chapter 244; now, therefore, be it

Resolved, That the Oregon State Bar strongly supports the current constitutional structure for the selection and election of judges that guarantees an independent judiciary;

Resolved, That the JUDICIAL ELECTION REFORM INITIATIVE and the OREGON JUDICIAL COUNCIL INITIATIVE would alter the Oregon Constitution in such a way that the judiciary would no longer function with the independence that has well served Oregonians since statehood; and that the Oregon State Bar opposes the passage of these initiatives; and

Resolved, That the Board of Governors is directed to report to the House of Delegates by January 1, 1998, its recommendation for implementing this resolution.

The following resolution was adopted at the January 17, 1998, Special Meeting of the House of Delegates

Whereas, The Oregon State Bar House of Delegates adopted Delegate Resolution No. 3 on Saturday, September 27, 1997; and

Whereas, Delegate Resolution No. 3 states the Oregon State Bar's opposition to the Judicial Council and the first Judicial Election Reform Initiative; and

Whereas, Delegate Resolution No. 3 directed the Board of Governors to report to the House of Delegates by January 1, 1998, its recommendations for implementing Delegate Resolution No. 3; and

Whereas, The Board of Governors, responsive to the House of Delegates' resolution, recently submitted a report to the House and the Oregon State Bar membership containing its recommendations concerning these initiatives; now, therefore, be it

Resolved, That the Oregon State Bar strongly supports the current constitutional structure for the selection and election of judges that guarantees an independent judiciary;

Resolved, That the Judicial Election Reform Initiative and the Judicial Council Initiative would alter the Oregon Constitution in such a way that the judiciary would no longer function with the independence that has well served Oregonians since statehood; and that the Oregon State Bar opposes the passage of these initiatives; and

Resolved, That the Oregon State Bar is not prohibited by Keller v. State Bar of California from acting as an advocate on any of these initiatives;

Resolved, That the House of Delegates endorses and directs the Board of Governors to pursue the following activities in response to these initiatives:

1. Pursue a public education campaign on the importance of the bar's role in the judicial system, the importance of an independent judiciary and the significance of the current judicial election process;

2. Increase media relations efforts with respect to public member involvement in the lawyer and judicial discipline process and the positive impact lawyers have in their communities;

3. Develop a speakers bureau and public forum/seminar series made up of both lawyers and judges concerning 1) and 2) above; and

4. Continue to work with state and local bar leaders to develop strategies regarding the implementation of the foregoing public education efforts.

Resolved, That should any of these initiatives qualify for the 1998 Oregon General Election, the Board of Governors is directed to report what initiatives are on the ballot and any further action to be taken by the bar by August 1, 1998.

Presenter: Kevin T. Lafky

Update on Changes in Affirmative Action Program (Agenda No. 26)

The Board of Governors unanimously approved recommendations which the OSB Affirmative Action Committee (AAC) proposed on July 25, 1998, modifying eligibility requirements for certain Affirmative Action Program (AAP) components. The recommendations and approval resulted from over a year's analysis of the program which included a Predicate Study published in August of 1997. The board had requested modifications to better assure the program's constitutional defensibility and overall program effectiveness in achieving bar goals as defined in the bar's mission statement.

The board approved categorizing the AAP components into 'Funding Components' and 'Outreach Components.' 'Funding Components' deal with direct transfer of the program's monetary resources and include OSB Scholarships, Bar Exam Grants, Clerkship Stipends, and Public Honors salaries. Any law student, regardless of race or ethnicity, can compete for these components although race and ethnic minority status remain among the criteria to determine awards. Other criteria for consideration regarding 'Funding Components' include socioeconomic hardship, disability and sexual orientation as these criteria inter alia relate to enhance access to justice in Oregon's community. The remaining components are 'Outreach Components' and are recruiting tools to better assure that ethnic and racial minorities are encouraged and informed about helping the bar to diversify its membership to provide greater access to justice in Oregon's community. 'Outreach Components' include Minority Law Day, Professional Partnership Program (mentoring), First Year Honors (firms provide salaries), and Opportunities for Law In Oregon (an AAP orientation program for first-year ethnic minority law students).

For all components, an applicant must provide an 'Oregon State Bar Statement' which will assist the AAC reviewing subcommittee to determine the applicant's intention to practice law in Oregon. Such statement will better assure the program and the bar membership that allocated resources are investments in students who will indeed serve Oregon's community upon passing the Oregon Bar Examination.

Presenters: John Paul (Toby) Graff
Ronald Guerra

Update on Trust Account Overdraft Notification Program
(Agenda No. 27)

The House of Delegates at its 1997 meeting directed the Board of Governors to study the Trust Account Overdraft Notification Program. The Board of Governors has studied the Trust Account Overdraft Notification Program and its operation from inception in March 1994 through 1997, and has determined that the program has provided significant protection to the public. A copy of the report the board considered concerning this issue was previously sent to all members of the HOD.

The BOG believes the program is highly effective at identifying violations of the disciplinary rules concerning trust accounts, and at motivating those lawyers who have not violated a disciplinary rule, but who have been inattentive to their trust accounting, to devote more attention and oversight to the handling of client money. The board further has determined that the program has provided this measure of public protection in a cost-effective manner. Accordingly, the Board of Governors has proposed no changes to the Trust Account Overdraft Notification Program.

The following resolution Regarding Trust Account Overdraft Notification Program was adopted at the September 27, 1997, House of Delegates Meeting:

Whereas, The 1993 Oregon Legislature adopted ORS 9.132 permitting the Oregon Supreme Court and the Oregon State Bar to establish a trust account overdraft notification program for attorneys;

Whereas, Pursuant thereto the Oregon Supreme Court and the Oregon State Bar adopted DR 9-102 implementing such program;

Whereas, The House of Delegates has doubts whether the Trust Account Overdraft Notification Program is cost effective or provides any significant protection of the public in general and clients of Oregon lawyers in particular; now therefore, be it

Resolved, That the Board of Governors of the Oregon State Bar is directed to study the Trust Account Overdraft Notification Program embodied in DR 9-102 including an analysis of the causes for overdrafts reported to the Bar, the amount of staff time and expense associated with administering the program, the size of the law firms which were reported to have trust account overdrafts and the disposition of the cases involving trust account overdrafts. The study should cover the period from the inception of the program through at least December 31, 1997. The Board of Governors is directed to present the results of such study to the House of Delegates at the 1998 annual meeting with a recommendation whether to continue, modify or terminate the Trust Account Overdraft Notification Program.

Presenter: Mark A. Johnson

Update on Bar Rule of Procedure 3.2(g) (Agenda No. 28)

At the 1997 HOD Meeting, BR 3.2(g) was considered. This rule provides that lawyers who claim that they are disabled from understanding the nature of a disciplinary proceeding against them, assisting and cooperating with their attorney, or from participating in their defense, and lawyers seeking to return to active membership status after previously having been involuntarily transferred by the Supreme Court to inactive membership status, waive any privilege existing between such lawyer and any doctor or hospital treating them during the period of the alleged disability. The Board of Governors reviewed, with input from Disciplinary Counsel and the Disciplinary Rules and Procedure Committee, BR 3.2(g) this past year and concluded that no revisions should be made. Accordingly, the Board of Governors has proposed no changes to BR 3.2(g).

The following resolution regarding Review of Bar Rule of Procedure 3.2(g) was adopted at the September 27, 1997, House of Delegates Meeting:

Whereas, Current Bar Rule of Procedure 3.2(g) provides that lawyers who claim that they are disabled from understanding the nature of the disciplinary proceeding against them, assisting and cooperating with their attorney, or from participating in their defense, and lawyers seeking to return to active membership status after previously having been involuntarily transferred by the Supreme Court to inactive membership status, waive any privilege existing between such lawyer and any doctor or hospital treating them during the period of the alleged disability; and

Whereas, Current Bar Rule of Procedure 3.2(g) can be argued to call upon such lawyers to reveal more information than is necessary to address the disability issue presented to the state bar in such circumstances; now, therefore, be it

Resolved, That the Board of Governors is requested to determine whether Bar Rule of Procedure 3.2(g) should be revised to limit the extent of the waiver of the physician-patient privilege when the issue of a lawyer's claim of disability in a disciplinary investigation or proceeding or when the issue of the appropriateness of a lawyer's transfer from involuntary inactive membership status to active status is presented to the state bar; and

Resolved, That the Board of Governors is further requested to review whether the waiver required by Bar Rule of Procedure 3.2(g) should be limited to the issues of whether the disabled person was treated, his or her admitting diagnosis, any amendment to the admitting diagnosis, whether the lawyer complied with his or her plan of treatment, and whether the lawyer successfully completed the treatment program, and that statements made and information developed as a part of the treatment process should not otherwise be subject to discovery pursuant to Bar Rule of Procedure 4.5.

Presenter: Edwin A. Harnden

Update on Campaign for Equal Justice (Agenda No. 29)

The Board of Governors continues to work on implementing BOG Resolution No. 3 adopted at the September 27,1997, House of Delegates Meeting. Members are encouraged to make an appropriate voluntary contribution this year to the Campaign for Equal Justice. BOG Resolution No. 3 states:

BOG Resolution No. 3
Campaign for Equal Justice

Whereas, Equal access to justice and the provision of high quality legal representation for all Oregonians are of paramount concern to the Oregon State Bar;

Whereas, Oregon lawyers have successfully raised significant funds for civil legal services programs from lawyers and law firms for the past six years through the Campaign for Equal Justice;

Whereas, The Campaign for Equal Justice is one of the most successful fundraising efforts of its kind in the United States;

Whereas, The Campaign for Equal Justice has established an annual fund goal of $500,000 for 1997;

Whereas, The Oregon Law Foundation has awarded a $100,000 grant to civil legal services programs to match new contributions made to the Campaign for Equal Justice in 1997; and

Whereas, The Board of Governors has established a goal of achieving 100% participation in the Campaign by bar leaders, including governors, committee and section chairs, local bar presidents, and elected members of the House of Delegates, and 50% participation by all other members this year; now, therefore, be it

Resolved, That the Oregon State Bar urges all members to make an appropriate voluntary contribution this year to the Campaign for Equal Justice.

Presenter: Richard C. Baldwin