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†2002 House of Delegates Meeting

Valley River Inn
1000 Valley River Way
Eugene, Oregon
Saturday, October 5, 2002, 10:00 a.m.
Presiding Officer: Angel Lopez


Dear OSB Member:

As part of the 2002 Annual Meeting, the OSB House of Delegates Meeting will be held on Saturday, October 5, 2002. See agenda below.

Although only delegates may vote on the resolutions, members are welcome and are encouraged to participate in the discussion and debate of these items. If you are unable to attend, please contact one of your delegates to express your views on the resolutions. Delegates are listed here.

Matters that will be considered by the HOD include: a $20 increase in the annual membership fee for active members, recommendations from the Disciplinary System Task Force, changes in the MCLE child abuse and diversity requirements, a new disciplinary rule prohibiting compensation for referrals to nonlawyers, opposition to ballot measures that will change the way judges are elected, and support for adequate funding for indigent defense and legal services to low-income Oregonians.

I also encourage you to attend the Annual Awards Luncheon, which will be from Noon to 1:30p.m. on Friday, October 4, 2002. Tickets ($30 per person) can be obtained by filling out the Annual Meeting registration form. You may also obtain tickets by calling the OSB Order Desk at 800-452-8260, ext. 413 (in Oregon only) or 503-620-0222, ext. 413. Seating is limited, so reserve your place soon! Our special award honorees are:

If you have any questions about the House of Delegates meeting, please contact Teresa Bowen, Executive Assistant, at 800-452-8260, ext. 386 (in Oregon only), at 503-620-0222, ext. 386, or by e-mail at twenzel@osbar.org.

I look forward to seeing you in Eugene!

Angel Lopez, President

Oregon State Bar

Agenda

  1. Call to Order:
  2. †Angel Lopez
  3. Overview of Parliamentary Procedure:
  4. †George A. Riemer
  5. Report of the President:
  6. †Angel Lopez
  7. Adoption of Final Meeting Agenda:
  8. †Angel Lopez
  9. Report of the BOG Budget and Finance Committee:
  10. †David A. Hytowitz

    Items with Financial Impact
  11. Increases annual membership fees (BOG Resolution No. 1) Page 4
    Presenter: David A. Hytowitz
  12. Directs the Board of Governors to pursue and implement recommendations of the Disciplinary System Task Force (BOG Resolution No. 2) Page 6
    Presenter: Dennis C. Karnopp


  13. Items with Legislative Implications
  14. Requests the BOG to seek a legislative amendment making child abuse reporting a one-time Mandatory Continuing Legal Education (MCLE) requirement for all members (Delegate Resolution No. 1) Page 7
    Presenter: Marshall L. Wilde
  15. Requests the BOG to seek a legislative amendment making child abuse reporting a one-time Mandatory Continuing Legal Education (MCLE) requirement for out-of-state members (Delegate Resolution No. 2) Page 8
    Presenter: Russell B. Hale


  16. Other Resolutions
  17. In Memoriam (BOG Resolution No. 3) Page 9
    Presenter: Angel Lopez
  18. Supports indigent defense funding (BOG Resolution No. 4) Page 10
    Presenter: James M. Brown
  19. Opposes Initiative Measure 21 regarding new procedure for appointing and electing judges (BOG Resolution No. 5) Page 10
    Presenter: Gerry Gaydos
  20. Opposes Initiative Measure 22 requiring election of appellate judges by district (BOG Resolution No. 6) Page 11
    Presenter: William G. Carter
  21. Supports adequate funding for legal services for low-income Oregonians (BOG Resolution No. 7) Page 13
    Presenter: Charles R. Williamson
  22. Supports adequate funding for the Judicial Department (BOG Resolution No. 8) Page 14
    Presenter: Charles R. Williamson
  23. Urges Supreme Court to allow for electronic filing projects (Delegate Resolution No. 3) Page 15
    Presenter: T. Kenji Sugahara
  24. Requests the BOG to ask the Oregon Supreme Court to make 'diversity' a one-time Mandatory Continuing Legal Education (MCLE) requirement for all members (Delegate Resolution No. 4) Page 15
    Presenter: Marshall L. Wilde
  25. Requests the BOG to ask the Oregon Supreme Court to make 'diversity' a one-time Mandatory Continuing Legal Education (MCLE) requirement for out-of-state members (Delegate Resolution No. 5) Page 16
    Presenter: Russell B. Hale


  26. Old Business
  27. Approves new DR 2-105 : Compensation from nonlawyers (BOG Resolution No. 9) Page 17

  28. Presenter: Ronald L. Bryant

Items with Financial Impact

  1. Increases annual membership fees (BOG Resolution No. 1)

Whereas, the Board of Governors of the Oregon State Bar recommends that the Oregon State Bar make available to all active members an online legal research library (Casemakerô); and

Whereas, the Board of Governors of the Oregon State Bar recommends the implementation of most of the recommendations of the Disciplinary System Task Force, including the establishment of a Consumer Assistance Program; and

Whereas, the Board of Governors believes both the Casemakerô legal research library and most of its recommendations from the Disciplinary System Task Force report can be implemented at an annual cost of $20 per active member; and

Whereas, the Board of Governors has determined that the Client Security Fund assessment will be $5 for active members in 2003 (a $10 reduction from 2002); now, therefore, be it

Resolved, that the 2003 annual membership fees for members of the Oregon State Bar shall be as follows:

  1. Active Members
    1. For members admitted in any jurisdiction before January 1, 2001, $391.00 for the basic membership fee; $30 for the Affirmative Action Program fee; and $5.00 for the Client Security Fund assessment for a total of $426.00.
    2. For members admitted in any jurisdiction before January 1, 2001, who fail to pay their active fees and assessments of $426.00 by the due date: $476.00.
    3. For members admitted in any jurisdiction on or after January 1, 2001: $334.00 for the basic membership fee; $15.00 for the Affirmative Action Program fee; and $5.00 for the Client Security Fund assessment for a total of $354.00.
    4. For members admitted in any jurisdiction on or after January 1, 2001, who fail to pay their active fees and assessments of $354.00 by the due date: $396.00.
    5. For those members admitted in Oregon in 2003, the fees shall be apportioned.
    6. For those members who pass away in 2003, reimbursement of fees paid shall be apportioned upon request of appropriate representatives, except that the increase of fees due to payment made after the due date shall not be included in the apportioned refund.
    7. Exemptions to active membership fees:
      1. Members who were admitted to practice law in Oregon prior to January 1, 1953, are exempt from the basic membership fee and the Affirmative Action Program fee.
      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 Pro Bono and Active Emeritus Members
    1. For members who qualify under BOG Policy 15.700 for Active Pro Bono or Active Emeritus membership: $110.00 for the basic membership fee and $5 for the Client Security Fund assessment, for a total of $115.00.
    2. For Active Pro Bono or Active Emeritus members who fail to pay their fees and assessments of $115.00 by the due date: $140.00.

  3. Inactive Members
    1. The 2003 membership fee for inactive members shall be $110.00.
    2. For those inactive members who fail to pay their fees of $110.00 by the due date: $135.00.
    3. Exemptions to inactive membership fees:
      1. Members who were admitted in Oregon prior to January 1, 1953.
      2. Members in active military duty in compliance with the terms of ORS 408.450 are exempt from the payment of inactive membership fees.
      3. Members who are in the VISTA, Peace Corps, or other programs authorized by Board of Governors Policy 10.302 are exempt from the payment of inactive membership fees.
      4. Members who are granted a hardship exemption under Board of Governors Policy 10.301.

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

  5. Definitions: Apportioned fees pertain only to those members admitted in Oregon or who passed away during calendar year 2003. 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.

Presenter: David A. Hytowitz

Background

This resolution increases the annual membership fee for active members by $20 for 2003. The additional amount will pay for the development, implementation, and maintenance of Casemakerô , an online legal research library that will be available to active OSB members at no additional expense (no access charges or monthly or hourly user fees) and will cover the cost of implementing most of the changes the Board of Governors is recommending be made to the OSB disciplinary process. Because the BOG has reduced the Client Security Fund assessment to $5 for 2003 (from $15 in 2002), the net increase to active members over 2002 fees and assessments is $10.

Bar members have indicated a strong interest in having an online legal research library of Oregon authorities available without access or user fees. Casemakerô was developed by Lawriter and the Ohio State Bar Association in 1998, and is being used by eleven state bar associations that make up the 'Casemakerô Consortium.' A demonstration, including a Q&A session, will be presented to the HOD and representatives from Casemakerô will be available to discuss the product.

If this resolution is approved, the Bar will enter into a contract with Lawriter for an initial period of five years. Once the contract is in place and the scope and content of the library determined, it will take approximately nine months for the site to be prepared and 'go live.' No up-front or lump-sum payment is required of the Bar. Casemakerô amortizes the development cost and includes it with monthly billing for the maintenance costs. The first monthly payment is not due until the site is live. The cost will ultimately depend upon the content of the library; the preliminary estimate is that it will be at least $10,000/month ($120,000/year).

The balance of the requested fee increase (Casemakerô is estimated to cost approximately $15 per active member) will be used to implement most of the board approved recommendations of the Disciplinary System Task Force. The principal additional cost to the Bar to implement those recommendations will be in the establishment of the Consumer Assistance Program (CAP). The Board estimates that the CAP program will cost approximately $5 per active member to implement.

Approval of the 2003 Fee Resolution presumes that the annual cost of Casemakerô and the CAP will be included in future years' budgets of the Bar and will be incorporated into subsequent years' membership fees.

Additional information regarding Casemakerô is available here.

  1. Directs the Board of Governors to pursue and implement recommendations of the Disciplinary System Task Force (BOG Resolution No. 2)

Whereas, in September 2001, the Oregon State Bar House of Delegates adopted a resolution directing the Board of Governors to establish and supervise a comprehensive study of the Oregon State Bar disciplinary system and to make recommendations to the HOD in 2002 based on that study; and

Whereas, the Disciplinary System Task Force solicited input around the state from individual bar members, local bar associations, and members of the public to inform its study; reviewed statistics on the disposition of disciplinary complaints for a three-year period; and thoroughly examined all aspects of the disciplinary process; and

Whereas, the Disciplinary System Task Force presented its report to the Board of Governors in August 2002; and

Whereas, the Board of Governors thoroughly reviewed and discussed the Task Force report and recommendations; and

Whereas, the Board of Governors believes the following actions should be taken to improve the Oregon State Bar disciplinary process and recommends that the House of Delegates approve them for implementation; now, therefore, be it

Resolved, that the Board of Governors take the following actions recommended by the Task Force:

  1. Continue the efforts of the BOG through its Special Legal Ethics Committee and other efforts to study the Code of Professional Responsibility and the ABA Model Rules of Professional Conduct (as amended in 2002) and recommend changes that will make the rules simpler, clearer, and easier for practitioners to understand and follow.
  2. Recommend to the Supreme Court adoption of a new disciplinary rule giving consideration in disciplinary proceedings to a lawyer's reliance on bar ethics opinions as evidence of the lawyer's good faith effort to comply with the code and as a basis for mitigation of sanctions.
  3. Develop and offer Continuing Legal Education programs and support services targeted to high-risk practice areas identified by Disciplinary Counsel.
  4. Establish a Consumer Assistance Program under General Counsel's Office to resolve minor problems between lawyers and clients that do not involve violations of disciplinary rules.
  5. Establish a diversion program for minor misconduct where the violation does not cause serious harm to a client, does not raise questions about the lawyer's moral fitness or integrity, and is due primarily to a personal problem that is amenable to treatment that will make it unlikely that a future violation will occur.
  6. [See Background statement that follows.]
  7. Seek an amendment of the Bar Rules of Procedure that will authorize the State Professional Responsibility Board to decline prosecution of disciplinary violations in situations where the SPRB determines that prosecution will not advance the interest of public protection.
  8. Create a 'case manager' or 'administrator' in General Counsel's Office for the Disciplinary Board, to receive and docket all formal disciplinary complaints and subsequent pleadings; to assist the state chair of the Disciplinary Board in appointing trial panels and scheduling hearings; and to receive and distribute trial panel decisions.
  9. Establish a voluntary alternative resolution process for contested disciplinary cases, similar to the 'case assessment' and 'mediation' models of the Oregon Dispute Resolution Commission, subject to approval in the same manner as Discipline by Consent.
  10. Seek a statutory amendment that will require Supreme Court review of disciplinary cases only when one party requests review.
  11. Encourage the Disciplinary Board and the Supreme Court to make greater use of probation pursuant to BR 6.2 as a sanction in disciplinary cases where educational requirements, practice monitoring, representation of low-income clients, or office management assistance will aid the lawyer in developing better practice habits and avoid future discipline.
  12. Create a new label for initial inquiries to the Bar about lawyer conduct, and label as 'disciplinary complaints' only those that have been determined to raise an arguable issue of a disciplinary rule violation.

Presenter: Dennis C. Karnopp

Background

The House of Delegates has been provided with a copy of the Disciplinary System Task Force report. The Board of Governors concurs with all of the recommendations of the task force, with the exception of the Task Forceís Proposal #6, to develop statutory and rule changes to allow 'expungement' of dismissed disciplinary complaints. The Task Force proposes that dismissed complaints be available as required

by the Public Records Law (ORS 192.410 et seq.) for a period of four years from the date of dismissal, after which period the records would be 'retained in a sealed fashion' and available only by court order for good cause shown. The BOG has discussed an alternative approach that would allow for destruction of dismissed complaints five years after dismissal, but has not taken a position on this issue. The BOG believes that the Public Records Law and Bar Rules of Procedure will both need to be amended to implement any change in the way dismissed complaints are handled.

Financial Impact

The Board of Governors estimates that establishing the Consumer Assistance Program (recommendation #4) will require an increase in the annual membership fee of $11 per year. The annual membership fee increase of $50 in 2000 included $6 for development and operation of a Consumer Assistance Program, but the BOG deferred acting on the program pending completion of the Disciplinary System Task Force report. The additional $5 is included in the fee resolution. There may be financial implications to other recommendations. However, until the Supreme Court approves specific rules, it is not possible to make an exact determination of their costs.

Items with Legislative Implications

  1. Requests the BOG to seek a legislative amendment making child abuse reporting a one-time Mandatory Continuing Legal Education (MCLE) requirement for all members (Delegate Resolution No. 1)

Whereas, the Oregon State Legislature has passed legislation requiring one hour of child abuse reporting MCLE per reporting period, without consulting the Oregon State Bar Board of Governors or the Oregon State Bar House of Delegates;

Whereas, this requirement generally serves the useful and laudable purpose of educating new Oregon State Bar members regarding their legal obligations;

Whereas, the MCLE requirements do not contain any other requirement for repeated MCLE, except for general and ethics hours;

Whereas, it is the sense of the Oregon State Bar House of Delegates that repeating the child abuse reporting MCLE every three years is unnecessarily repetitive and burdensome;

Whereas, the MCLE rules currently acknowledge the special status of new members by requiring a certain number of 'practical skills' hours during an Oregon attorney's first MCLE reporting period;

Whereas, the Oregon State Bar House of Delegates serves as the representative body for the members of the Oregon State Bar;

Whereas, the Oregon State Bar House of Delegates could provide valuable feedback regarding the drafting of, implementation of, and alternatives to such requirements; now, therefore, be it

Resolved, that the Oregon State Bar House of Delegates respectfully requests that the Board of Governors (i) petition the Oregon State Legislature to modify this statutory requirement to be applicable only for an attorney's first reporting period after admission to the Oregon State Bar, and (ii) extend a respectful request to the Oregon State Legislature that it solicit feedback from the House of Delegates when considering such policy changes in the future, to promote a more efficient and democratic process.

Presenter: Marshall L. Wilde

  1. Requests the BOG to seek a legislative amendment making child abuse reporting a one-time Mandatory Continuing Legal Education (MCLE) requirement for out-of-state members (Delegate Resolution No. 2)

Whereas, the Oregon State Legislature has passed legislation requiring one hour of child abuse reporting MCLE per reporting period, which requirement is also contained in MCLE Rule 3.3(c) (the 'CAR Requirement');

Whereas, the CAR Requirement generally serves the useful and laudable purpose of educating Oregon State Bar members regarding their legal obligations;

Whereas, it is unlikely that these requirements will be applicable in any meaningful way to attorneys who reside outside the State of Oregon and whose principal office is outside the State of Oregon;

Whereas, the MCLE requirements do not contain any other requirement for repeated MCLE, except for general and ethics hours;

Whereas, there exists a lack of meaningful opportunities for out-of-state attorneys to participate in MCLE programs regarding CAR Requirements;

Whereas, it is the sense of the Oregon State Bar House of Delegates that repeating the CAR Requirement every three years is unnecessarily repetitive and burdensome;

Whereas, the MCLE rules currently acknowledge the special status of new members by requiring a certain number of 'practical skills' hours during an Oregon attorney's first MCLE reporting period;

Whereas, the Oregon State Bar House of Delegates serves as the representative body for the members of the Oregon State Bar;

Whereas, the Oregon State Bar House of Delegates could provide valuable feedback regarding the drafting of, implementation of, and alternatives to such requirements; now, therefore, be it

Resolved, that the Oregon State Bar House of Delegates respectfully requests that the Board of Governors petition the Oregon State Legislature to modify the statutory CAR Requirement so that once an attorney completes 1 hour of child abuse reporting credit, the requirement will not be applicable to subsequent reporting periods of an attorney who lives outside of Oregon and whose principal office is outside of Oregon, and petition the Oregon Supreme Court to make a corresponding change to MCLE Rule 3.3(c).

Presenter: Russell B. Hale

Background

Oregon lawyers are required to complete one MCLE hour on Oregon's child abuse reporting requirements. The requirement must be repeated each reporting cycle.

An active lawyer whose principal office is not in Oregon may satisfy Oregon's MCLE requirements through compliance with the lawyer's local MCLE requirements, but only if the Oregon criteria are substantially met by the local program. Lawyers practicing in other states usually attend local programs and utilize those programs to satisfy both local and Oregon requirements.

When a lawyer's local state has no comparable requirement, there are no local programs available to satisfy the requirement. In such cases, compliance with local requirements is not sufficient to meet Oregon's requirement and additional compliance is required of the lawyer.

To comply with the child abuse reporting requirement, a lawyer practicing outside Oregon must either travel to Oregon to attend a live program or order tapes of the program. While a live program is significantly more meaningful, the time and costs involved often make travel impractical. Taped programs are expensive and lack the meaningful benefits of a live program. Thus, there is often no practical way for meaningful compliance by the out-of-state lawyer. In addition, there is little chance that an out-of-state lawyer will be impacted by Oregon's child abuse reporting requirements.

The proposed resolution maintains the initial benefits of the child abuse reporting requirement by requiring lawyers to complete the program once, but thereafter, suspends repeated compliance for periods that the lawyer lives outside Oregon and maintains his or her principal office outside Oregon.

Other Resolutions

  1. In Memoriam (BOG Resolution No. 3)

Resolved, that the OSB House of Delegates and members assembled stand for a moment of silence in honor of the members of the Oregon State Bar whose deaths have been reported since the 2001 House of Delegates Meeting.

In Memoriam

Homer Allen, Portland, OR
James McNeal Blackford, Eugene, OR
D. Stanley Boggs, Portland, OR
John S. Butterfield, Sacramento, CA
C. C. Carlson, Portland, OR
Richard A. Carlson, Portland, OR
Marshall C. Cheney, Jr., Rancho Mirage, CA
William M. Dale, Portland, OR
Leslie Frazier Darby, Portland, OR
Dell De Merritt, Goodyear, AZ
J. E. Finke, King City, OR
Paul M. Fletcher, Salem, OR
Marion J. Ford, Orleans, MA
James G. Frame, Lebanon, OR
Maurice O. Georges, Portland, OR
Louis M. Giovanini, Vancouver, WA
Clifford William Gribble, Palo Alto, CA
Alfred A. Hampson, Tiburon, CA
Francis E. Harrington, Portland, OR
Edmund Dudley Harris, Palm Springs, CA
Allan Hart, Portland, OR
John J. Haugh, Vancouver, WA
Barrie J. Herbold, Portland, OR
Roger V. Holm, Vancouver, WA
Joan Johansen, North Bend, OR
Jean M. King, Portland, OR
Clarence R. Kruger, Salem, OR
Alvin A. Kurtz, Bellevue, WA
Robert A. Leedy, Portland, OR
Norman W. Legernes, Portland, OR
Michael P. Levi, McMinnville, OR
James F. McCaffrey, Portland, OR
Alfred T. McGill, Portland, OR
Albert R. McMullen, Newport, OR
The Honorable Richard Mengler, Corvallis, OR
J. T. Monahan, Milton Freewater, OR
Frank W. Mowry, Woodburn, OR
Todd N. Nelson, Las Vegas, NV
Andrew J. Newhouse, North Bend, OR
John D. Nichols, Portland, OR
Eddie Nordyke, Salem, OR
Paul J. O'Hollaren, West Linn, OR
A. E. (Gene) Piazza, Medford, OR
Daniel M. Portwood, Portland, OR
Dale A. Rader, Ontario, OR
Linda Love Rankin, Portland, OR
V. K. Sawhney, Honolulu, HI
E. U. Sims, Portland, OR
Noam Stampfer, Portland, OR
Brian A. Steenson, Portland, OR
E. Emerson Stickels, West Palm Beach, FL
Louise Swenson, Bend, OR
Elvin Tarlow, Portland, OR
Captain Lars E. Toftemark, Columbus AFB, MS
Donald H. Turner, Salem, OR
Alfred C. Veazie, Portland, OR
Lisa C. Vogt, Reno, NV
Jesse F. Webb, Homewood, CA
Millard F. Willis, Albany, OR

Presenter: Angel Lopez

  1. Supports indigent defense funding (BOG Resolution No. 4)

Whereas, attorneys handling Federal court-appointed cases are now compensated at a rate of $90 per hour with annual adjustments; and

Whereas, the $40 per hour that was established in 1991 paid to court-appointed attorneys adjusted for inflation would be $58 per hour today; and

Whereas, the Oregon State Bar finds that the current level of compensation for indigent defense providers diminishes the quality of legal representation and discourages lawyers from choosing the provision of indigent services as a professional career choice; now, therefore, be it

Resolved, that the Oregon State Bar introduce, sponsor, and support passage of legislation mandating appropriate compensation levels for indigent defense providers and their staff, and an increase to two-thirds of the Federal rate for court-appointed private counsel;

Further resolved, that the Oregon State Bar support the Public Defender Services Commission budget in the 2003 Ways and Means Committee for an appropriation sufficient to fund these goals.

Presenter: James M. Brown

Background

The Oregon State Bar and its members have long supported adequate funding for indigent defense services, including the compensation paid to the lawyers who represent eligible clients. The per-hour compensation for private indigent defense counsel in Oregon has not been increased since 1991. The rate paid by the federal government for indigent defense in federal criminal cases is more than double the Oregon rate. The earnings of defense counsel employed by contract providers varies. The current compensation threatens the adequate provision of indigent defense.

The Board of Governors is concerned that this disparity in earnings is a disincentive to choosing indigent defense as a professional career. Moreover, while indigent defense providers individually and collectively do their best to provide effective and high-quality legal services to their clients, they do so under heavy caseloads and with limited resources for investigation and case development. This adversely affects the quality of services available to indigent clients.

With this resolution, the Oregon State Bar reaffirms its commitment to adequate funding for indigent defense by introducing and supporting legislation to increase the compensation for indigent defense providers.

  1. Opposes Initiative Measure 21 regarding new procedure for appointing and electing judges (BOG Resolution No. 5)

Whereas, Oregon Revised Statutes 9.080(1) charges the Board of Governors to 'direct its power to the advancement of the science of jurisprudence and the improvement of the administration of justice;' and

Whereas, currently the governor fills midterm judicial vacancies by appointment, and appointees serve until the vacancy is filled at the next general election held more than 61 days after the vacancy occurs; and

Whereas, this measure would require midterm judicial vacancies to be filled by election at the closest May or November election held more than 90 days after the vacancy occurs; and

Whereas, in all judicial elections, this measure would require that the ballot include a 'None of the Above' option and if no candidate receives more votes than 'None of the Above,' the judicial office would remain vacant until a candidate other than 'None of the Above' receives a plurality of votes cast at subsequent May and/or November special elections; and

Whereas, this election requirement could cause delay in filling vacant judicial positions thereby diminishing judicial efficiency, delaying resolution of pending litigation to the detriment of litigants in the system, and increasing costs to all parties in the process; and

Whereas, this measure eliminates the governor's ability to appoint lawyers to judicial vacancies and requires those vacancies to be filled by election; and

Whereas, this measure would result in unnecessary expenses associated with holding special elections to fill judicial vacancies; and

Whereas, this measure could render judges vulnerable to attack by special interests for unpopular decisions without explanation of the context of the decision; and

Whereas, it is in the best interests of the public and advances the efficient administration of justice to assure the timely filling of judicial vacancies; now, therefore, be it

Resolved, that the Oregon State Bar oppose enactment of Initiative Measure 21; and

All members of the Oregon State Bar are urged to communicate to their clients, family, staff members, and others the harmful effect that this measure would have on the functioning of the courts and access to justice in this state.

Presenter: Gerry Gaydos

Background

The Board of Governors believes Initiative Measure 21 would significantly impact the efficient functioning of the courts and the timely administration of justice if approved by the electorate in the November 2002 election. The measure provides for inclusion of 'None of the Above' on the ballot as an official candidate, and it also provides that the candidate receiving the most votes wins the election. However, in the event that 'None of the Above' wins, an exception is triggered that requires special elections each May and November until a candidate other than 'None of the Above' receives a plurality of votes. Thus, if 'None of the Above' wins over all other eligible candidates, then no one is elected and the position remains vacant until a candidate other than 'None of the Above' is elected at a subsequent special election.

A direct result of this measure would be that judicial vacancies could remain unfilled for an indefinite period of time. For example, if Measure 21 passes, a judicial vacancy could only be filled by an election held more than 90 days after the vacancy occurs. Further, in the event that 'None of the Above' receives the most votes in that subsequent election, the vacancy would remain unfilled until at least the next May or November special election. At a minimum, all vacant judicial offices would remain unfilled for several months.

This measure could also result in significant unnecessary expenses associated with holding special elections to fill judicial vacancies. It is conceivable that several special elections would have to be held to fill one judicial vacancy.

Judicial vacancies also affect the ability of the courts to function efficiently and hinder the timely disposition of cases before the courts. The result would be increased delay and costs to litigants and attorneys in the system. Such delay is intolerable in a system designed to protect society's vulnerable citizens, to provide safety to the public, and to facilitate resolution of business disputes.

More importantly, this measure potentially could be used by special interests to politicize the judicial selection process by attacking, without full explanation of the context of the case, unpopular decisions rendered by a particular judge.

Approval of the proposed resolution would put the Oregon State Bar on record as opposed to this measure based on its adverse effects on Oregon's justice and court systems if enacted into law.

  1. Opposes Initiative Measure 22 requiring election of appellate judges by district (BOG Resolution No. 6)

Whereas, Oregon Revised Statutes 9.080(1) charges the Board of Governors to 'direct its power to the advancement of the science of jurisprudence and the improvement of the administration of justice;' and

Whereas, the Oregon State Bar's purposes include promoting the application of the knowledge and experience of the profession to the public good; and

Whereas, currently all Oregon Supreme Court judges and Court of Appeals judges are elected by statewide vote, and the only residency requirement for Oregon Supreme Court judges is that they 'shall have resided in this state at least three years next preceding their election or appointment,' and for Court of Appeals judges is that they 'shall be an elector of the county of the residence of the judge;' and

Whereas, this measure would amend the Oregon Constitution to require the creation of judicial districts based on population, and would require all Oregon Supreme Court judges and Court of Appeals judges elected or appointed to office to reside within their districts; and

Whereas, this measure would require judges to potentially maintain dual residences incurring additional housing and travel expenses; and

Whereas, this measure also would require reapportionment of judicial districts when legislative districts are reapportioned; and

Whereas, this measure would provide that the reapportionment would become operative on the next date on which a judge will commence a term of office, and any judge whose term continues through the next date on which a judge will commence a term of office shall be specifically assigned to a district; and

Whereas, this measure would require that judicial vacancies that occur after the effective date of the law reapportioning the districts and before the next date on which a judge will commence a term of office shall be filled from the district that existed before the effective date of the reapportionment, except that if a vacancy occurs in a judge position for a district to which a judge has been assigned, the vacancy shall be filled from the district to which the judge is assigned; and

Whereas, notwithstanding Section 18, Article II of the Oregon Constitution, this measure would provide that a judge who has been assigned to a district is subject to recall by the electors of the district to which the judge is assigned and not by the electors of the district existing before the latest reapportionment; and

Whereas, the Oregon Supreme Court and Court of Appeals now contain judges from all parts of the state, and governors appoint successor judges to vacancies from all over the state, and this measure would arbitrarily prevent the most highly qualified candidates from being elected or appointed if their district slots are already filled; and

Whereas, judges swear an oath of office to support the Constitution of the United States and the Constitution of the State of Oregon, and affirm that they will faithfully discharge the duties of their office to the best of their ability; and

Whereas, the judicial oath of office applies to all decisions rendered in the State of Oregon and does not apply differently in different regions of the State of Oregon; and

Whereas, this measure would have a disproportionately negative impact on the more populated regions of the state because fewer highly qualified candidates would be eligible to run for Oregon Supreme Court or Court of Appeals positions; and

Whereas, it is in the best interests of the public and advances the efficient administration of justice to assure judicial vacancies on the Oregon Supreme Court and the Court of Appeals are filled by the most highly qualified members of the legal profession regardless of their place of residence in the state; now, therefore, be it

Resolved, that

  1. The Oregon State Bar oppose enactment of Initiative Measure 22; and
  2. All members of the Oregon State Bar are urged to communicate to their clients, family, staff members, and others the harmful effect that this measure would have on the efficient functioning of the Oregon Supreme Court and Court of Appeals.

Presenter: William G. Carter

Background

The Board of Governors believes Initiative Measure 22 would impact the efficient functioning of the Oregon Supreme Court and the Court of Appeals if approved by the electorate in November 2002. The measure would amend the Oregon Constitution to require the creation of judicial districts based on population. The measure divides the state into seven districts, based on population, for the purpose of electing Supreme Court judges; electors within each district elect only one Supreme Court judge. The measure also divides the state into five districts for election of judges of other appellate courts created by law (except the Tax Court), with two judges elected from each district. The measure also requires all Oregon Supreme Court judges and Court of Appeals judges elected or appointed to office to reside within their districts.

The requirement that Oregon Supreme Court and Court of Appeals judges reside within their districts would result in judges incurring significant expenses related to travel to and from their respective districts to the Capitol. For some judges, the time involved in their 'commute' may be so significant that they would be forced to either maintain dual residences or spend significant amounts of time away from their homes and families. Also, the collegiality, discussion, and debate facilitated by judges sharing adjacent office space would be severely curtailed.

In addition, the measure requires reapportionment of judicial districts when legislative districts are reapportioned. The reapportionment becomes operative on the next date on which a judge will commence a term of office, and any judge whose term continues through the next date on which a judge will commence a term of office shall be specifically assigned to a district.

However, notwithstanding Section 18, Article II of the Oregon Constitution (which provides that public officers in Oregon are subject to recall by the electors of the state or of the electoral district from which the public officer is elected), any judges assigned to a district would be subject to recall by the electors of the district to which the judge is assigned and not by the electors of the district existing before the latest reapportionment.

This measure could potentially foreclose opportunities for highly qualified candidates to run for Oregon Supreme Court and Court of Appeals positions. It could also subject a standing judge who is assigned to a district to recall by a subset of the electorate who voted the judge into office.

This measure could politicize the judicial selection process by encouraging the belief that a judge would perhaps apply the law differently based on the region of the state in which the judge resides. However, judges swear an oath of office to support the Constitution of the United States and the Constitution of the State of Oregon, and affirm that they will faithfully discharge the duties of their office to the best of their ability and will not apply the laws or constitutions differently based on the judicial district from which the judge is elected.

Approval of the proposed resolution would put the Oregon State Bar on record as opposed to this measure based on its adverse effects on Oregon's justice and court systems if enacted into law.

  1. Supports adequate funding for legal services for low-income Oregonians (BOG Resolution No. 7)

Whereas, providing equal access to justice and high quality legal representation to all Oregonians are central to the mission of the Oregon State Bar; and

Whereas, programs providing civil legal services to low-income Oregonians are a fundamental component of the Bar's effort to provide such access; and

Whereas, the State of Access to Justice for Low and Modest Income Oregonians Report found that throughout Oregon there is an urgent unmet need for additional legal services; and

Whereas, Oregon's lawyers and the Oregon State Bar have long supported mechanisms to provide funding for civil legal services programs, including the surcharge on civil filing fees, the fundraising efforts of the Campaign for Equal Justice, the Interest on Lawyers Trust Accounts Program, and Pro Hac Vice fees; and

Whereas, assistance from the Oregon State Bar and the legal community is critical to maintaining and developing resources that will provide low-income Oregonians meaningful access to the justice system; now, therefore, be it

Resolved, that the Oregon State Bar:

  1. Actively participate in efforts to improve the availability of a full range of legal services to all Oregonians, through the development and maintenance of adequate support and funding for civil legal services for low-income Oregonians as follows:
  1. Continue collaboration with other organizations to procure additional state funds for legal services, including an increase in court filing fees;
  2. Request that Congress and the President of the United States make a genuine commitment to equal justice by adequately funding the Legal Services Corporation (LSC) and removing restrictions that limit how attorneys working for LSC-funded programs can practice law;
  3. Provide leadership in the efforts of the Campaign for Equal Justice to increase contributions by establishing goals of a 100% participation rate by members of the House of Delegates and a 50% contribution rate by all lawyers;
  4. Continue the partnership with the Campaign for Equal Justice and the Oregon Law Foundation to develop an endowment for legal services programs;
  5. Continue to support the Oregon Law Foundation and its efforts to increase resources through the Interest on Lawyer Trust Accounts (IOLTA) program.
  1. Promote pro bono representation and encourage Oregon lawyers to support civil legal services programs by meeting the OSB Aspiration Standard for Pro Bono.

Presenter: Charles R. Williamson

Background

The Oregon State Bar and its members have long supported equal access to justice for low-income Oregonians, both by establishing a variety of programs to enhance funding and through direct pro bono representation. With this resolution the OSB and its members restate and renew their commitment to the goal of equal access to justice for all, including support for an increase in civil court filing fees and other funding mechanisms.

  1. Support adequate funding for the Judicial Department (BOG Resolution No. 8)

Whereas, the Oregon State Legislature has decreased the budget of Oregon courts by over nine percent (9%) since the close of the 2001 regular session; and

Whereas, Oregon courts were under-funded already in the 2001 budget prior to the nine percent (9%) cuts; and

Whereas, the Oregon State Legislature has cut funding for indigent criminal defense by approximately fourteen percent (14%) since the close of the 2001 regular session; and

Whereas, indigent defense attorneys are generally paid only approximately forty dollars ($40.00) per hour prior to the funding cuts; and

Whereas, the fair and efficient administration of justice is a necessity for a free and open society; and

Whereas, funding cuts have caused the closure of courts in some counties on Fridays, cutback in court staff in some counties by ten percent (10%) or more, the termination of court reporters and criminal offender release officers in some counties, and the extreme delay in filing of papers and scheduling of trials; now, therefore, be it

Resolved, that

  1. The Oregon State Bar strongly urge the Oregon State Legislature to restore all funding cut from Oregon courts, justice programs, and indigent defense as soon as possible, but no later than the close of the regular 2003 legislative session;
  2. The Oregon State Bar strongly urge the Oregon State Legislature to provide such additional funding for the courts and indigent defense as may be reasonably required to account for population and case load increases and inflation;
  3. Members of the Oregon State Bar are urged to contact their legislators and to request their families, friends, and staff to contact their legislators in support of this resolution; and
  4. This resolution is in addition to and not in lieu of any other resolution calling for additional funding for indigent criminal defense to provide a fair income for attorneys performing this important work.

Presenter: Charles R. Williamson

  1. Urges Supreme Court to allow for electronic filing projects (Delegate Resolution No. 3)

Whereas, the House of Delegates of the Oregon State Bar has the duty in annual session to debate matters of concern to the membership of the Oregon State Bar and to provide learned advice and direction on matters concerning the practice of law in the State of Oregon;

Whereas, the House of Delegates of the Oregon State Bar believes that electronic filing of court documents will improve the practice of law;

Whereas, the Federal Court for the District of Oregon is running an electronic filing pilot project, but there is no counterpart in the State Courts of Oregon;

Whereas, the Information Technology Department of the Oregon Justice Department does not have the resources to implement electronic filing pilot projects; now, therefore, be it

Resolved, that the House of Delegates requests and instructs the Board of Governors of the Oregon State Bar to urge the Supreme Court of Oregon:

  1. To allow private vendors to engage in electronic filing pilot projects in the State Courts of Oregon;
  2. To allow only those vendors who subscribe to the Legal XML standard or substantially similar standard to participate in pilot projects;
  3. To allow individual courts to choose their vendors with minimal oversight from the Information Technology Department of the Oregon Justice Department;
  4. To allow individual courts to allocate resources to these pilot projects as they see fit; and
  5. To adopt rules of procedure to enable electronic filing.

Presenter: T. Kenji Sugahara

  1. Requests the BOG to ask the Oregon Supreme Court to make 'diversity' a one-time Mandatory Continuing Legal Education (MCLE) requirement for all members (Delegate Resolution No. 4)

Whereas, the Oregon Supreme Court, after consultation with the Oregon State Bar Board of Governors, has imposed new diversity MCLE requirements upon the members of the Oregon State Bar requiring three hours of diversity MCLE each reporting period;

Whereas, this requirement generally serves the useful and laudable purpose of educating new Oregon State Bar members regarding good practice;

Whereas, the MCLE requirements do not contain any other requirement for repeated MCLE, except for general and ethics hours;

Whereas, it is the sense of the Oregon State Bar House of Delegates that repeating the diversity MCLE every three years is unnecessarily repetitive and burdensome;

Whereas, the MCLE rules currently acknowledge the special status of new members by requiring a certain number of 'practical skills' hours during an Oregon attorney's first MCLE reporting period;

Whereas, the Oregon State Bar House of Delegates serves as the representative body for the members of the Oregon State Bar;

Whereas, the Oregon State Bar House of Delegates could provide valuable feedback regarding the drafting of, implementation of, and alternatives to such requirements; now, therefore, be it

Resolved, that the Oregon State Bar House of Delegates respectfully requests that the Board of Governors (i) petition the Oregon Supreme Court to modify this requirement to be applicable only for an attorney's first reporting period after admission to the Oregon State Bar, and (ii) extend a respectful request to the Oregon Supreme Court that it solicit feedback from the House of Delegates when considering such policy changes in the future, to promote a more efficient and democratic process.

Presenter: Marshall L. Wilde

  1. Requests the BOG to ask the Oregon Supreme Court to make 'diversity' a one-time Mandatory Continuing Legal Education (MCLE) requirement for out-of-state members (Delegate Resolution No. 5)

Whereas, the Oregon Supreme Court, after consultation with the Oregon State Bar Board of Governors, has imposed new diversity MCLE requirements upon the members of the Oregon State Bar requiring three hours of diversity MCLE each reporting period;

Whereas, this requirement generally serves the useful and laudable purpose of educating Oregon State Bar members regarding good practice and promoting those practices within the State of Oregon;

Whereas, the legitimate interest of the Oregon State Bar in promoting these practices are not substantially served by requiring repeated compliance by those Oregon State Bar members who live outside the State of Oregon and whose principal office is outside the State of Oregon;

Whereas, the MCLE requirements do not contain any other requirement for repeated MCLE, except for general and ethics hours;

Whereas, there exists a lack of meaningful opportunities for out-of-state attorneys to participate in MCLE programs regarding diversity practices;

Whereas, it is the sense of the Oregon State Bar House of Delegates that repeating the diversity MCLE every three years is unnecessarily repetitive and burdensome;

Whereas, the MCLE rules currently acknowledge the special status of new members by requiring a certain number of 'practical skills' hours during an Oregon attorney's first MCLE reporting period;

Whereas, the Oregon State Bar House of Delegates serves as the representative body for the members of the Oregon State Bar;

Whereas, the Oregon State Bar House of Delegates could provide valuable feedback regarding the drafting of, implementation of, and alternatives to such requirements; now, therefore, be it

Resolved, that the Oregon State Bar House of Delegates respectfully requests that the Board of Governors petition the Oregon Supreme Court to modify this requirement to be applicable with respect to an attorney who lives outside of Oregon and whose principal office is outside of

Oregon only for such attorney's first reporting period after admission to the Oregon State Bar.

Presenter: Russell B. Hale

Background

For reporting periods beginning January 1, 2002, or thereafter, Oregon lawyers are required to complete 3 MCLE hours on the role of lawyers concerning racial and ethical issues, gender fairness, disability issues, and access to justice. The diversity requirement must be repeated each reporting cycle.

An active lawyer whose principal office is not in Oregon may satisfy Oregon's MCLE requirements through compliance with the lawyer's local MCLE requirements, but only if the Oregon criteria are substantially met by the local program. Lawyers practicing in other states usually attend local programs and utilize those programs to satisfy both local and Oregon requirements.

When a lawyer's local state has no comparable requirement, there are no local programs available to satisfy the requirement. In such cases, compliance with local requirements is not sufficient to meet Oregon's requirement and additional compliance is required of the lawyer.

To comply with the diversity requirement, a lawyer practicing outside Oregon must either travel to Oregon to attend a live program or order tapes of the program. While a live program is significantly more meaningful, the time and costs involved often make travel impractical. Taped programs are expensive and lack the meaningful benefits of a live program. Thus, there is often no practical way for meaningful compliance by the out-of-state lawyer.

The proposed resolution maintains the initial benefits of the diversity training by requiring new lawyers to complete it once, but thereafter, suspends repeated compliance for subsequent periods that the lawyer lives outside Oregon and maintains his or her principal office outside Oregon.

Old Business

  1. Approves new DR 2-105 : Compensation from nonlawyers (BOG Resolution No. 9)

Whereas, the OSB Board of Governors has formulated the following new Disciplinary Rule 2-105 and recommends its approval by the OSB House of Delegates, pursuant to ORS 9.490(1); now, therefore, be it

Resolved, that the House of Delegates approve the amendment of the Oregon Code of Professional Responsibility to add the following new rule:

DR 2-105 Compensation from Nonlawyers

A lawyer shall not refer a client to a nonlawyer with the understanding that the lawyer will receive a fee, commission, or anything of value in exchange for the referral, but a lawyer may accept gifts in the ordinary course of social or business hospitality.

Presenter: Ronald L. Bryant

Background

In January 2002, the Board of Governors (BOG) submitted to the House of Delegates a proposal to adopt a new disciplinary rule that would prohibit lawyers from accepting compensation for making referrals to nonlawyer professionals. The text of that rule was:

'Except as provided in DR 2-107, a lawyer shall not accept a fee, commission, or anything of value from a person to whom the lawyer refers a client for other professional services in exchange for such referral.'

The HOD had a lengthy discussion at its January 2002, meeting on the meaning of the phrase 'anything of value' and whether it precluded any kind of gift from a nonlawyer to whom the lawyer makes a referral (DR 2-107 permits the payment of referral fees to lawyers). A variety of alternative approaches were discussed by the HOD, including a dollar limit on gifts. Ultimately, the HOD voted to return the proposal to the BOG and the Legal Ethics Committee (LEC) for further consideration.

This proposed rule was originally developed by the LEC at the direction of the BOG in response to a proposed formal ethics opinion holding that Oregon's disciplinary rules do not prohibit a lawyer from accepting a commission or referral fee from a securities broker in exchange for referring the lawyer's client to the broker. In the hypothetical presented to the LEC, the fee would be based on the value of the client's assets under management by the broker, either as a one-time commission or on an on-going basis. After studying relevant authorities, the LEC concluded that the existing disciplinary rules do not prohibit such an arrangement per se, but that it creates a self-interest conflict under DR 5-101(A). A self-interest conflict exists when 'the exercise of the lawyer's professional judgment on behalf of the lawyer's client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests' in the matter. The LEC's draft opinion suggested that the lawyer's judgment regarding a broker referral for the client reasonably may be affected by the lawyer's own interest in receiving a commission or referral fee. Under DR 5-101(A), however, the client could consent to the self-interest conflict after full disclosure by the lawyer of the risk the client was being asked to assume. The BOG declined to adopt the proposed formal opinion, and instead directed the LEC to develop a rule that would prohibit the acceptance of referral fees or other compensation in such situations.

In studying the proposal a second time, the LEC began by identifying what is perceived to be the underlying concern, that is, that a lawyer should not refer clients to nonlawyer professionals under an agreement for or an expectation of receiving compensation for the referral. The lawyer should make the referrals based on what is best for the client, not what returns the most benefit to the lawyer. At the same time, the LEC recognized that it is normal business practice for professionals to encourage referrals from lawyers and to express gratitude therefore in the form of hospitality, gifts, or other 'perks.' Typical gifts include wine, fruit baskets, tickets to sports events or other entertainment, meals, or invitations to golf. Neither the LEC nor the BOG believes that lawyers should be precluded from such ordinary exchanges of professional hospitality.

The new language developed by the LEC and recommended by the BOG addresses those competing concerns. It prohibits referrals made pursuant to an understanding that the lawyer will receive a fee, commission, or anything of value in exchange for the referral. However, it allows the receipt of ordinary social or business gifts that are not intended or designated as 'payment for' a specific referral.

If this rule change is approved by the HOD, it will be forwarded to the Supreme Court for adoption pursuant to ORS 9.490(1).