2002 House of Delegates Meeting

Summary of Meeting Held on October 5, 2002

The seventh annual meeting of the House of Delegates of the Oregon State Bar opened with a review of the past year by President Angel Lopez. Mr. Lopez stated that because of the importance of the resolutions before the body at this meeting, the HOD had 'matured as a process.' Mr. Lopez discussed the looming budget crisis of the Judicial Department that took a disproportionate hit in recent special legislative sessions. If the income tax surcharge measure does not pass in January, court closures and further cuts will be made. In addition, the state budget for Indigent Defense will be exhausted as of April 1, 2003 leaving representation of indigent criminal defense clients at risk. Mr. Lopez said, 'the public and the legislature do not understand the links between the courts and families, the courts and crimes, and the courts and our communities.' He highlighted the resolutions opposing Ballot Measures 21 and 22 and called those measures 'efforts to politicize the judiciary.' Ballot Measure 21 would create a 'None of the Above' choice in judicial elections and Ballot Measure 22 would elect appellate court judges by regional districts.

David Hytowitz, chair of the board’s Budget and Finance Committee, reported on the good financial condition of the bar. The Secretary of State issued a clean audit for the preceding two year period. The increase in membership fees presented to the HOD, Mr. Hytowitz explained, was for the contract with Casemaker, a new on-line research tool, and for implementation of the recommendations of the Disciplinary System Task Force. He cautioned that a fee increase could be expected in 2003 (effective in 2004) to cover normal bar operations. He noted the increase in legal fees in 2001-02 to defend the bar in a suit filed by the United States against the bar relating to the Oregon Supreme Court decision in the Gatti discipline case.

Joe Shea and other representatives of the Ohio State Bar Association outlined the legal research product called Casemaker, which was being proposed by the Oregon State Bar’s Board of Governors. Started in Ohio, the product would allow access to Oregon case law and other legal material as well as certain federal materials. Access is also provided to all other states in the Casemaker bar consortium (currently 11). The product has a citation locator, natural language search, the ability to browse a table of contents, and much more.

Dennis Karnopp, chair of the Disciplinary System Task Force, presented the recommendations of the BOG and the task force. The HOD voted in one motion to accept various recommendations of the report such as reviewing the Code of Professional Responsibility, the creation of a diversion program, and labeling initial calls and letters as inquiries until it was determined that an arguable ethics violation had occurred. With some debate, other provisions such as allowing mitigation for an accused lawyer who had sought written ethics advice from bar counsel and allowing more discretion to the SPRB were adopted. Two items that were subject to more debate were two differing proposals for a Consumer Assistance Program (CAP) and for expungement of dismissed complaints. The HOD ultimately adopted a CAP/Central Intake program that would effectively move intake of complaints from the Disciplinary Counsel’s office to the General Counsel’s office with Disciplinary Counsel only receiving complaints that 'raised an actual ethics' issue. The HOD also adopted an expungement proposal that would place dismissed complaints older than four years in a sealed file. Anyone seeking access to the sealed file would have to obtain an order from the Circuit Court. Several of the proposals passed by the HOD regarding the disciplinary system will require approval by the Oregon Supreme Court and/or the state legislature.

After passage of the Disciplinary System Task Force items, the HOD voted to increase the mandatory fee for active bar members by $26 effective January 1, 2003.

Four resolutions that would have either created a one-time only obligation for child abuse reporting MCLE requirements and the 'diversity' MCLE requirement for all bar members or just out-of-state active members were not adopted by the body. Thus, the current requirements of once every reporting period will remain.

A moment of silence was observed for the members of the bar who had passed away in the preceding year.

With overwhelming support, the House of Delegates passed resolutions to support increased indigent defense funding, to support adequate funding for legal services for low-income Oregonians, to support adequate funding for the Judicial Department, and to explore electronic filing. Members speaking in support of these resolutions cited the need for access to the judicial system for all Oregonians, not simply those who had sufficient financial resources. The state of the Judicial Department budget following the cuts from the several special legislative sessions in 2002 will impact even those with financial resources as court closures become more common and as the docket becomes more and more focused on criminal cases.

The HOD in an almost unanimous vote passed resolutions in opposition to ballot measure initiatives 21 and 22. The resolution in opposition to Ballot Measure 21 stated that the measure would cause lengthy vacancies by abolishing the current gubernatorial appointment process. This could result in 'delays of pending litigation to the detriment of litigants in the system and increasing costs to all parties in the process.' The cost of judicial elections would also likely increase.

Ballot Measure 22 would require appellate judges to be elected from regional districts throughout the state. The resolution adopted by the HOD cited concerns that the measure would require judges to maintain two residences and that the Oregon Constitution does not apply differently in different regions of the state. Finally, the resolution stated that it was in the best interest of the public to have these appellate positions filled by 'the most highly qualified members of the legal profession regardless of their place of residence in the state.'

In final action, the HOD voted to approve a new disciplinary rule that would allow an attorney to accept a gift from a non-lawyer to whom the lawyer had referral business in the ordinary course of social or business hospitality but not receive a fee, commission, or anything of value in exchange referring a client to the non-lawyer.