Oregon State Bar
Meeting of the Board of Governors
January 28, 2000 – Lake Oswego
Mission Statement: The mission of the Oregon State Bar is to serve justice by promoting respect for the rule of law, by improving the quality of legal services, and by increasing access to justice.
Open Session Minutes
The meeting was called to order by President Rew on Friday, January 28, 2000 at 10:35 a.m. Mr. Harnden presided over the meeting from 2:10 p.m. to 4:55 p.m. The open session on Friday was from 10:35 a.m. to 12:00 p.m., from 1:55 p.m. to 2:10 p.m., and from 3:50 p.m. to 4:55 p.m. (recessed to the Judicial Proceedings agenda from 12:00 p.m. to 12:20 p.m. and 1:25 p.m. to 1:30 p.m.; recessed to the Executive Session agenda from 1:30 p.m. to 1:55 p.m.; and recessed to work session 2:10 p.m. to 3:50 p.m.). All members of the Board of Governors were present with the exception of Malcolm Scott and Agnes Sowle; John Tyner from 10:35 a.m. to 11:50 a.m.; Larry Rew from 2:10 p.m. to 4:55 p.m.; David Orf from 1:40 to 2:10 and 3:30 p.m. to 4:30 p.m.; and Sarah Rinehart from 3:50 p.m. to 4:55 p.m. Staff present were Karen Garst, Executive Director; Susan Grabe, Public Affairs Attorney; Sandy Hise, Executive Assistant; Anastasia Meisner, Legislative Assistant; Bob Oleson, Public Affairs Director; George Riemer, General Counsel; and Lisa Sindlinger, CLE Publications Manager. Others present in order of appearance included Mike Greene, Julie McFarlane, Kris Winemiller, Diana Stuart, Tom Peachey, Kirk Hall, and Bruce Shafer.
1. Report of Officers
A. Report of the President
1. Meeting with Chief Justice Carson
Mr. Rew reported on the meeting with Chief Justice Carson that he, Ms. Garst and Ms. Grabe attended on January 5. Highlights of the meeting included plans to revive the Professionalism Commission, the HOD resolution regarding a future study on the impact of disabilities and access to the judicial system, and the Judicial Department budget.
2. Professionalism Commission – staff support
Mr. Rew summarized plans to ask the Professional Liability Fund to provide staffing for the Professionalism Commission. Several members of the commission plan to continue as members including Bill Brickey as its chair.
3. Attorney General’s review of the Gustafson request regarding PLF
Mr. Rew asked Ms. Garst to bring the board up to date on Ms. Gustafson’s letter to Attorney General Hardy Myers. She had requested the Attorney General to investigate the bar’s handling of the Pearce/PLF matter. A discussion occurred about the Attorney General's relationship with the bar in such matters. Mr. Riemer explained that the bar obtains its own outside counsel and has not generally been represented by the Attorney General. Public records have been requested by the AG's Office regarding the Pearce matter and have been provided by Mr. Sapiro. Mr. Greene indicated he had been contacted by the Attorney General’s Office for background information concerning the Pearce matter.
B. Report of the Executive Director
1. General status report
Ms. Garst reported on several matters: The California State Bar recently lost an appeal over fees; a communication from Charles Isaak who is being prosecuted by the Disciplinary Counsel’s Office; a proposal to survey members about the bar convention and MDP on the BOG election ballot; and work completed on the OSB history project through 1935. She discussed the OSB public service ad campaign that will appear in six newspapers around the state, on a few radio stations, and the OSB web site. The ads, developed by the Virginia State Bar, were purchased by the OSB. Mr. Harnden requested that copies of the ads be sent to board members. Ms. Garst also mentioned the Supreme Court’s adoption of DR 8-101 and 5-105.
The board of the Washington State Bar Association proposed to meet with the BOG on March 31 in Vancouver; unfortunately the BOG will be meeting Seaside at that time. The two boards have met in the past when their meeting dates coincided in the Portland/Vancouver Metro area.
2. Rules and Ethics Opinions
A. Legal Ethics Committee (LEC)
1. Proposed Formal Ethics Opinion – Driver/passenger conflicts
LEC chair, presented a proposed formal ethics opinion that addresses
the ethical issues that arise when a lawyer represents both driver
and passenger in a negligence case against the adverse driver. The
opinion has been studied for a long time by the LEC and a draft
of the opinion was circulated at a recent OTLA meeting where it
received many positive comments. He proposed a wording change on
agenda exhibit page 37 (2nd paragraph from the bottom),
' . . require the lawyer to stop representing
both the driver or and the passenger(s).
Action: Ms. Burrows moved, Mr. Williamson seconded, to approve Formal Ethics Opinion No. 2000-158, Multiple Client Conflicts of Interest - Current Clients: Representing Driver and Passenger(s) in Personal Injury/Property Damage Claims (to include the revision shown in the preceding paragraph). The motion was approved by the board (13-0-3; absent Scott, Sowle, Tyner).
2. Proposed Formal Ethics Opinion - Guardians ad litem
Julie McFarlane, LEC member, discussed a proposed formal ethics opinion to deal with the difficult question of when a lawyer may or should seek the appointment of a guardian ad litem (GAL) for an incompetent client. It also addressed the differing roles of guardian and lawyer. There was strong consensus on the LEC that the formal opinion was needed to help others navigate through the quagmire of issues related to this matter. Ms. McFarlane explained that the bottom line was to encourage lawyers not to seek appointment as guardian ad litems, but to use it as a last resort. A discussion ensued about the rights of parents, the best interest of the child, and the differences of children's versus parent's guardian ad litems.
Mr. Harnden thanked the LEC for its work on this complex issue. Mr. Greene praised the bar's ethics hot line for doing an outstanding job answering lawyers' questions ahead of potential problems.
Action: Mr. Williamson moved, Ms. Cohen seconded, to approve Formal Ethics Opinion No. 2000-159, Guardians Ad Litem in Juvenile Dependency Cases. The motion was approved by the board (13-0-3; absent Scott, Sowle, Tyner).
3. OSB Committees, Sections, Councils, Divisions and Task Forces
A. Indigent Defense Task
1. Indigent Defense Task Force Report
Mr. Orf welcomed Indigent DefenseTask Force III (IDTF III) chair Kris Winemiller and member Diana Stuart to the meeting. Staff liaisons, Lisa Sindlinger and Bob Oleson, were also present. Mr. Orf reviewed the charge of the task force and referred to the agenda exhibit materials (pp. 45-45.16) that described the methodology used and breadth of the task force's work. Mr. Orf felt the task force had done an excellent job and had prepared a concise and well organized draft report.
Ms. Winemiller explained that the IDTF III had gone beyond its broad charge and had some concern about exceeding it. The subject has evoked a strong emotional response from those involved in the field and there was concern about delving into sensitive areas. Board feedback was requested to help the task force finalize the IDTF III Report. Ms. Stuart explained that task force members felt that personal interviews to gather comprehensive, anecdotal information were preferred over a 'cold' survey. Information was solicited from lawyers throughout the state by telephone.
A lengthy discussion ensued about ways to address and more completely monitor issues on various practice questions. Ms. Winemiller indicated that the window of opportunity was closed in the short term because the annual contract renewal time had just passed. She felt that better training and mentoring appears needed, especially in geographically remote areas. Ms. Winemiller asked the BOG to provide guidance on how to identify people, bar resources, legislative remedies, obtaining input from local judiciary before the State Court Administrators office renews contracts, and so on.
Mr. Harnden asked about the possibility of the task force continuing to work with the new commission over the next year or so and to review its report with various legislative groups. Discussion continued about Public Affairs assisting possible legislative solutions with the IDTF. The task force is being asked to submit specific recommendations when the final report is returned to the BOG. There was consensus for the Public Affairs Committee to continue this discussion and to assist the IDTF.
Board members thanked Ms. Winemiller, Ms. Stuart, and the IDTF III members for their hard work and excellent draft report.
B. PLF Policies & Procedure Task Force
1. Update on January 11 meeting
Mr. Riemer reported on the first meeting of the PLF Policies & Procedure Task Force (PLFTF) held on January 11 from 5:00 p.m. to 9:30 p.m. He read from his notes to convey that members of the task force have accepted the challenge by asking very tough questions. Minutes of the meeting will be available soon and a tape of the session is available upon request. Mr. Riemer suggested that the BOG track on the materials as they evolve in order to be prepared to make decisions regarding the task force's upcoming recommendations.
Mr. Rew also attended the meeting and agreed that the task force was taking the BOG's charge very seriously. A lot more needs to be learned about PLF claims handling procedures and policy. Don Marmaduke prepared eleven questions in advance of the January 11 meeting and went through them all in the first meeting. Mr. Riemer characterized the task force as a high caliber group that wants to get to the bottom of the issues and not be faced with questions from bar members about 'white washing' the matter. They feel their reputations are on the line.
Mr. Rew proposed the BOG hold work sessions at its January 28 and March 31 board meetings to enhance its education about PLF operations and claims handling. The April 1, 2000 reporting timeline for the PLF P&PTF may need to be extended. It is anticipated that the BOG will receive the task force recommendations in time for review prior to the June 2, 2000 board meeting.
Ms. Garst asked board members to let her or Mr. Riemer know whether they want copies of the PLFTF meeting tapes in addition to the minutes. Mr. Riemer commented on the dearth of response from members to the article in the January issue of the Bulletin on the establishment of the task force. He indicated that letters requesting feedback had been mailed to the local bar presidents, section leaders and various allied law groups.
2. Information presented by PLF at the January 11 task force meeting
Mr. Rew encouraged board members to review the information attached to the agenda.
4. BOG Committees, Special Committees, Task Forces and Study Groups
A. Policy & Governance Committee
1. Proposed changes to OSB Bylaws, Board Policies and Standard Section Bylaws to implement January-December bar year
Mr. Baldwin presented recommendations to approve policy and bylaw revisions to change the OSB 'bar' year to a calendar year, effective January 1, 2001.
Action: The Policy & Governance Committee moved to waive the one meeting notice required by Bar Bylaw 4.2(B) and to amend OSB Bylaw 5.5, 8.3, 6.2, and 15.1; BOG Policy 6.301, 6.302, 6.501, 6.502 and 8.304; and various Standard Section Bylaws(as shown on agenda exhibit pp. 53-57). The motion was approved by the board (14-0-2; absent Scott, Sowle).
2. Consider Ohio State Bar Association resolution regarding UPL
Mr. Baldwin reviewed the P&G Committee's recommendation to take no action on the Ohio State Bar Association request to support a resolution regarding the unauthorized practice of law. The consensus of the board was not to join as a sponsor of this resolution.
B. Appointments Committee
1. OLF Board letter to Jeff Carter requesting his resignation from Access to Justice Conference position
Mr. Lopez reported that the Appointments Committee discussed with Mr. Riemer a response to Ms. Shipler's letter to Mr. Carter. The board had previously determined that Mr. Carter is the appropriate person to fill the OLF Board vacancy with no inherent conflict of interest. Mr. Riemer indicated he would reiterate the BOG's position to Ms. Henry.
C. Public Affairs Committee
1. General update
Mr. Harnden indicated that the general update took place at the Public Affairs Committee with the full board present.
2. Proposed letter to House of Delegates to encourage meetings with legislators and judges
Mr. Harnden discussed the proposed letter to the House of Delegates to encourage better communication and facilitate better understanding of judicial system issues by urging bar members to meet with judges and legislators during the interim. There was consensus to send the letter. Mr. Rew indicated he encourages local attorneys to do the same at local bar visits
3. Sole & Small Firm Practitioner Section (SSFP) request to survey members
Mr. Harnden reviewed the SSFP Section request to survey members regarding Ballot Measure 81 (limitations on civil damages) as outlined in the attached exhibit.
Action: The Public Affairs Committee moved to approve the Sole & Small Firm Practitioner Section surveying its members regarding Ballot Measure 81 and publishing the survey results in its newsletter. The motion was approved by the board (13-0-3; absent Scott, Sowle, Tyner).
EXHIBIT, p. 1
D. Strategic Planning Committee
1. Proposed Ombudsman pilot program
Mr. Davis updated the board about the proposed Client Ombudsman program that will be in a pilot phase for six months. The Client Ombudsman position (staffed by a .5 FTE attorney) is an independent, objective, and impartial person who receives, evaluates, and responds to requests for assistance from clients about minor attorney/client problems. The goal of the program is to improve attorney/client relationships through good communication and to provide high standards of client service from attorneys and the bar. The Strategic Planning Committee (SPC) will evaluate the results of the six month pilot and make a recommendation to the board.
Mr. Davis indicated this is how the SPC felt it would bring issues to the board. The second issue being studied is the need to educate the members about Multi-Disciplinary Practice (MDP).
2. Request from Oregon's ABA State Delegate regarding MDP resolution
Mr. Davis discussed the attached request from Katherine O’Neil asking for a response about the OSB's reasons for joining with the Florida State Bar to not support the proposed MDP resolution at the 1999 ABA Annual Meeting.
The SPC recommends that Oregon’s ABA delegates not support the modification of the ABA’s model rules to allow MDPs at this time. Mr. Davis reiterated reasons stated in the attached memo from Karen Garst why the SPC is not recommending BOG support: There is no specific ABA proposal to implement MDP, lack of OSB membership consensus on MDP, and the magnitude of the issue suggests it should be subject to a vote of the members.
Action: Mr. Davis moved, Mr. Williamson seconded, to recommend to the Oregon ABA delegates that they not support a pro MDP resolution at the 2000 ABA Mid-Year meeting. The motion was approved by the board (11-0-5; absent Orf, Rew, Rinehart, Scott, Sowle).
EXHIBIT, p. 2-4
E. Access to Justice Committee
1. Status of Legal Needs Assessment
Mr. Harnden indicated this item would be carried over to the next board meeting.
2. Sponsorship and funding request for May 2000 Citizens’ Conference
Mr. Harnden presented the Access to Justice Committee's recommendation to approve a contribution of $5,000 from the contingency fund to co-sponsor the Citizens Justice Conference. Other sponsors include the Oregon Supreme Court, the Oregon Judicial Department, the League of Women Voters of Portland, Portland Community College, and the Multnomah and Clackamas County Bar Associations. Mr. Hytowitz inquired about other events the board is being asked to sponsor. Mr. Harden indicated the only other BOG sponsorship at this time is $10,000 to fund the Access to Justice Conference.
Action: The Access to Justice Committee moved to approve $5,000 from the contingency fund to co-sponsor the May, 2000 Citizens' Conference. The motion was approved by the board (11-0-5; absent Orf, Rew, Rinehart, Scott, Sowle).
F. Awards Special Committee
1. BOG role in 2000 awards program
Mr. Hytowitz announced that the brochure for the 2000 Award of Merit and President's Awards had been distributed to bar leaders and is available on the OSB web page. He asked board members to promote the awards program and to encourage bar leaders to submit nominations to honor deserving bar members. The nomination deadline is April 21, 2000. The annual awards ceremony will be held in conjunction with the 2000 House of Delegates meeting in Portland on September 22.
G. Annual Meeting Study Group
1. Study group status report
Mr. Williamson reported on good progress at the first study group meeting held January 27. Efforts are underway to find ways to hold an annual meeting without losing money. Related survey information was gathered from members in previous years was reviewed and an e-mail survey was considered to provide additional feedback. Approximately 500 members attended the 1999 OSB Biennial Meeting and many more members who did not register attended CLEs in Seaside.
A two or three month extension may be requested from the study group's February 1, 2000 deadline. The board discussed ideas that included requiring all section annual meetings to be held at the bar’s annual meetings and corporate sponsorships. Ms. Cohen felt sections would be very unhappy about such a requirement and expressed concern about allocating time for staff to be involved in fund-raising activities.
5. Professional Liability Fund
A. PLF Policy 2.300 – Combining Audit and Finance Committees
Mr. Harnden presented the proposed amendment to PLF Policy 2.300
Action: Mr. Davis moved, Mr. Baldwin seconded, to approve PLF Policy 2.300 – Combining Audit and Finance Committees. The motion was approved by the board (13-0-3; absent Rew, Scott, Sowle).
B. PLF Policies 6.100 and 6.200 – Loss Prevention/OAAP
Mr. Harnden reviewed the proposed amendments to PLF Policy 6.100 - Loss Prevention General Statement and PLF Policy 6.200 - Oregon Attorney Assistance Program
Action: Mr. Hytowitz moved, Ms. Naucler seconded, to approve PLF Policies 6.100 and 6.200 – Loss Prevention/OAAP. The motion was approved by the board (10-0-5-1; absent Orf, Rew, Rinehart, Scott, Sowle; abstaining Burrows).
C. PLF Policy 7.700 – Excess Program Rules
Mr. Harnden discussed the amendments to PLF Policy 7.700. A question and answer ensued with Mr. Hall clarifying that main purpose of the change is to discontinue surcharges to a firm that had an attorney at the firm doing securities work that is no longer employed.
Action: Mr. Hytowitz moved, Mr. Davis seconded, to approve PLF Policy 7.700 – Excess Program Rules. The motion was approved by the board (11-0-5; absent Orf, Rew, Rinehart, Scott, Sowle).
D. Letter to PLF Defense Panels
No action was taken on this informational item.
6. Appearances/Special Issues
A. Report of the Board of Bar Examiners (BBX) regarding House Counsel Admission Rule
Mr. Riemer reviewed the proposed corporate counsel admission rule. In response to a request from the BOG, the BBX considered the merits of an admissions rule providing that lawyers who are admitted in another jurisdiction may be admitted in Oregon, without bar examination, if their practice in Oregon is limited to serving as house counsel for a corporation or other business entity. Mr. Riemer also discussed suggestions from the attached memorandum from Mr. Loomis, Chair of the Corporate Counsel Section, which the BBX declined to adopt.
EXHIBIT, p. 5-6
The board's discussion included the following: (1) Why do we need this rule? (2) The BOG supported the concept and the BBX responded with a revised rule. (3) Why doesn’t the rule address court appearances by corporate counsel? (3) On a broader basis, if you start modifying the rules in this fashion, other groups will request similar privileges. The next topic will be law professors and others. (4) What should be done based on the apparent reality of MDP? (5) Why not simplify or streamline the bar exam process to allow attorneys to be licensed in multiple states, e.g., Oregon, Washington, and Idaho. (6) Corporate counsel are doing what they do now without becoming members.
After a lengthy discussion, there was consensus to hold this item over to the March board meeting
Action: Mr. Hytowitz moved, Mr. Lopez seconded, to table the matter until the board’s March meeting. The motion was approved by the board (11-1-4; no Naucler; absent Rew, Rinehart, Scott, Sowle).
B. Request to consider admission rule to allow out-of-state lawyers to practice law for legal aid and other non-profit programs
Mr. Riemer proposed the board consider requesting the BBX to study whether Oregon's admission rules should be amended to permit out-of-state lawyers to practice in Oregon without having to take and pass the bar examination if they limit their practices to work for legal aid, public defender, or similar organizations. He reviewed the letter from Mr. Berger proposing limited admission of out-of-state lawyers for this purpose.
The board discussed the matter and felt that the Policy & Governance Committee should collect member feedback, consider the matter further, and report to the board by the March meeting. Mr. Riemer indicated he would respond back to Mr. Berger in this regard.
C. Request to support Bar Association of District of Columbia resolution before ABA House of Delegates on appellate courts issuing written opinions in all non-frivolous cases
Mr. Riemer reviewed the matter and described it as a national issue. He asked if the board desired to take a supportive position on the issue. Mr. Harnden felt that it would result in a lot of unnecessary paperwork for the appellate courts. Mr. Baldwin indicated there would be little payoff with various legal groups taking shots at each other. Mr. Tyner indicated it would be helpful to have some feedback on appeals that are AWOPed (affirmed without opinion).
Action: Mr. Williamson moved, Mr. Orf seconded, to take no action on the matter. The motion was approved by the board (11-1-4; no Naucler; absent Rew, Rinehart, Scott, Sowle).
7. Consent Agenda
Action: Mr. Lopez moved, Mr. Williamson seconded, to approve the following consent items. The motion was approved by the board (12-0-4; absent Rew, Rinehart, Scott, Sowle).
A. Reading and approval of meeting minutes for November 13, 1999 and November 19, 1999
B. Appointments Committee
1. Appointment to Unlawful Practice of Law Committee
2. Appointment to Attorney-Mediator Study Group
3. Appointment of Chair and new member to the CPA (Joint) Committee
4. Appointment to Commission on Judicial Fitness and Disability Commission
5. Appointment to Affirmative Action Committee
6. Appointment of Members to the MCLE Committee
7. Appointments to the Lawyer Referral and Modest Means Committee
8. Appointment to Legal Heritage Interest Group
9. Appointment to Clackamas/Linn/Marion County LPRC
10. Region 6 House of Delegates
11. OLF Foundation appointment matter
EXHIBIT, p. 7
C. Policy & Governance Committee
1. Consider formation of the Administrative Law Section
2. Revisions to program advisory committee charges
3. Ratify members and charge for the PLF Policies & Procedures Task Force
4. Recommended timing for 2000 HOD regional meetings
D. Judicial Selection Special Committee
1. Proposed revision to Judicial Selection Special Committee charge
2. Approve revisions to BOG Policy 5.603 and 5.604 regarding judicial preference poll rules
E. Client Security Fund Committee
1. CSF Claim No. 99-26 – Motschman v. Mannix
2. CSF Claim No. 99-27 – Estate of Edwards v. Storie
3. CSF Claim No. 99-31 – Albertson v. Dewey
4. CSF Claim No. 99-33 – Polacek v.Gloyn.
5. CSF Claim No. 99-34 – Bouher v.Gloyn.
6. CSF Claim No. 99-35 – Wittlake v.Gloyn.
7. CSF Claim No. 99-37 – Obson v.Gloyn.
8. CSF Claim No. 99-38 – Bates v.Gloyn.
9. CSF Claim No. 99-39 – Simpson v.Gloyn.
10. CSF Claim No. 99-40 – Marrington & Marrington v.Gloyn.
11. CSF Claim No. 99-41 – Valdovinos v.Gloyn.
12. CSF Claim No. 99-42 – Mier v.Gloyn.
13. CSF Claim No. 99-43 – Lamprinos v.Gloyn.
14. CSF Claim No. 99-47 – Glover v.Gloyn.
8. Default Agenda
Mr. Harnden asked the board if it wished to discuss any items on the following default information agenda. There was no discussion.
A. Report of the President
1. General Correspondence
a. Steve Cyr’s resignation from the MCLE Board
2. Supreme Court order regarding MCLE
3. ABA 2000 Mid-year Meeting recommendations
4. Garst v. Myers – Supreme Court decision amending ballot title regarding judicial election process
B. Report of the Executive Director
1. Operations Report
2. SAIF refund to OSB
3. Disclosure of outside business activity by Mr. Riemer
4. MDP article: 2000, A Legal Odyssey
C. Client Security Fund Committee
1. CSF Claims Report
D. Budget & Finance Committee
1. Preliminary Financial Report for 1999 and 2000
9. Good of the Order (Non-action comments, information and notice of need for possible future board action)
A. Mr. Riemer discussed the attached memorandum from Sylvia Stevens regarding board member involvement in judicial campaigns. He asked if the board wished to consider taking action on it at this time. After discussion, there was consensus to assign the matter to the Policy & Governance Committee for consideration at the March board meeting.
EXHIBIT, p. 8-11