Oregon State Bar

Meeting of the Board of Governors

January 25-27, 2001 – Salem, Oregon

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

Friday, January 26, 2001

The meeting was called to order by President Ed Harnden on Friday, January 26, 2001, at 1:36 p.m. The work session (multi-jurisdictional practice and strategic planning) on Friday was from 1:36 p.m. to 4:00 p.m. Representatives from the Oregon Public Affairs Network appeared from 1:36 p.m. to 2:00 p.m. and Mark Johnson and Marilyn Harbur, OSB Delegates to the ABA House of Delegates, appeared from 4:00 p.m. to 4:20 p.m. The open session meeting was called to order at 4:25 p.m. and was adjourned for the day at 5:08 p.m. All members of the board except Sarah Rinehart, Malcolm Scott, Bruce Anderson, Ron Bryant and Jim Brown were present for the work session. John Tyner was present until 2:00 p.m. and returned at 4:29 p.m. for the open session. Jim Brown did not participate in the work sessions, but arrived at 4:15 for the open session. Staff present were Karen Garst, Executive Director; George Riemer, General Counsel; Bob Oleson, Public Affairs Director; Kay Pulju, Communications Manager; Ira Zarov, CEO of the PLF and Teresa Bowen, Executive Assistant. Others present included Scott Shorr, Robin Olson, Mark Johnson and Marilyn Harbur.

At 8:01 a.m. on Saturday, January 27, 2001, the meeting was called to order by President Ed Harnden and was adjourned at 12:05 p.m. All members were present except Ron Bryant and Bruce Anderson. Staff present were Karen Garst, Executive Director; George Riemer, General Counsel; Bob Oleson, Public Affairs Director; Donna Richardson, Member Services Administrator and Teresa Bowen, Executive Assistant.

Work Sessions

    1. Multi-Jurisdictional Practice
    2. Board members discussed the emerging issue of multi-jurisdictional practice. The concept refers to licensing requirements and other issues that involve practicing law in more than one state or jurisdiction. The ABA has established a commission to study the multi-jurisdictional practice issue. Currently, there are some exceptions to Oregon’s requirement to take the bar exam such as an exception for Oregon law school professors, foreign law consultants, and pro hac vice appearances. The Board of Governors is supporting an effort for reciprocal admission between Oregon, Washington, and Idaho. This issue is now before the Board of Bar Examiners. Given the complexity of commerce and its disregard for geography, this issue will continue to grow in importance.

    3. Strategic Planning

The board continued its strategic planning efforts from its November retreat. The board reviewed priorities under the following topics: justice system, access to justice, and the bar as a professional organization.

Report from OPAN

Robin Olson, Executive Editor, and Scott Shorr, Board Member, appeared on behalf of the Oregon Public Affairs Network (OPAN). OPAN is a public affairs network that will televise legislative hearings as well as Oregon Supreme Court and Court of Appeals sessions and is similar to CSPAN. The goal is to televise live on the web (www.opan.org) and have cable capabilities. The program would receive no state or federal funds and would rely primarily on private funding. Mr. Shorr and Mr. Olson requested $25,000 per year for the next three years from the Board of Governors to help fund the initial costs of starting up OPAN and the building of a production studio. The Board of Governors decided not to provide financial support to OPAN at this time.

Report from OSB ABA Delegates

Marilyn Harbur and Mark Johnson, OSB delegates to the ABA House of Delegates, discussed issues before the ABA HOD. Issues discussed at the annual meeting last July included: campaign finance reform; protection of children and adult victims of domestic violence during visitations set up under family law orders; improving access to funding for research and to legal services for breast cancer patients and other women’s health issues; and multidisciplinary practice (MDP). Issues for the February, 2001 mid-year meeting include revision of the model rules of evidence; a zero tolerance policy regarding school violence; resolutions pertaining to immigration policy and legislation regarding family support matters.

Board Meeting

President Harnden outlined six expectations he had of the board during meetings:

    1. All will be present; if a member cannot attend, he or she will contact Karen or him.
    2. The meetings will start on time.
    3. Sidebars will be eliminated to help keep board discussions on task.
    4. Each member will extend the utmost courtesy to all other members.
    5. The President will keep his involvement in discussions to a minimum and will not interject comments until the end of the discussion.
    6. There will be a wrap-up on issues of the current meeting and issues which can be expected to be on the agenda for the next meeting.

1. Report of the President (continued after PLF)

    1. Swearing in of new board members

Action Bette Worcester and Lisa LeSage were sworn into office.

2. Professional Liability Fund

    1. Proposed new PLF Policy 4.275 – Disclosure of PLF Involvement

Mr. Zarov presented PLF Policy 4.275 to the board for approval.

Action: After discussion, Ms. Sowle moved, Mr. Tyner seconded, to approve PLF Policy 4.275 as follows:

'Except where legal, ethical, and professional constraints dictate otherwise, the Fund’s policy is to fully and voluntarily disclose to the claimant or the claimant’s attorney that the Fund is defending the claim, and to the court where the litigation is pending when the Fund is providing a defense to the covered party in that litigation.'

After discussion of whether the first line should read, as originally set forth, 'Except where legal, ethical, and professional…' or revised to read, 'Except where legal, ethical, or professional…', the motion carried approving PLF Policy 4.275 language as originally set forth. (12-1-3; no William; absent Scott, Anderson, Bryant)

3. Report of Officers

A. Report of the President continued

1. Meeting with Chief Justice Carson

Mr. Harnden reported on a recent meeting with the Chief Justice centering on the judicial budget, the statute requiring bar members to submit their social security numbers to the bar for child support enforcement purposes and miscellaneous other matters. These included judges’ salaries, judges’ staff, indigent defense, the special HOD meeting, the MCLE diversity rule, reciprocity, judicial selection and HJR 7.

Several board members expressed concern about the manner in which bar members will be notified of the need for their social security numbers; the legality of the disclosure of that information to the bar; and how the numbers, if and when obtained, will be kept confidential except for disclosures required by law.

Mr. Harnden reported the Chief Justice and he also discussed the bar’s legislative priorities.

The group began to discuss HJR 7 but further discussion was set aside until Saturday, January 27, 2001, during the Public Affairs Committee presentation.

    1. Western States Bar Conference - March 7-10

There are funds set aside for BOG members to use for this conference. The funds will be divided equally among the members wishing to attend.

    1. Coordinating Communications within the BOG

Mr. Harnden expressed concern about BOG members making what may be construed as authoritative comments outside of their official capacity as board members. This often sends mixed signals to individuals outside of the BOG. He asked BOG members to keep in mind that when they speak the perception is they are speaking on behalf of the BOG by virtue of their position on the board.

4. Member Survey

Mr. Harnden asked the members to review the survey on their own.

    1. Feedback from letter regarding BOG retreat location
    2. BOG member feedback showed an even split between those members wishing to return to Tumalo and those not wishing to return. After further discussion it was determined the BOG retreat will be held in Tumalo again this year as the price is right, the food is good and it allows the BOG to spend time together as a group.

    3. Miscellaneous

Mr. Harnden commended the staff, the panel and the BOG on a job well done at the Bar Leadership Conference and HOD meeting on January 19, 2001.

B. Report of the President-Elect

1. Appellate Selection Process

Mr. Lopez reported on the recent Appellate Selection Process in which legislators and representatives from the Governor’s office participated.

Mr. Lopez indicated the process allowed the committee to identify six excellent candidates to add to the original pool of highly qualified candidates, which brought the total to 13 highly qualified candidates to submit to the Governor. Mr. Lopez further reported that there were still some parts of the interview process that needed to be revised. The candidate questions need to be reviewed and revised and the two-year timeframe for maintaining candidates on the qualified list should be one year to make the process more efficient.

C. Report of the Executive Director

1. CLE Publications Consultant’s Report

Ms. Garst reported on the consultant’s report regarding strategies to assist the CLE Publications Department in meeting its revenue goals.

The consultant’s report indicated a breakeven objective was feasible but the program needed some revamping to reach that goal. More effort and funds need to be spent on marketing and selling the backlist of publications. Ms. Garst will bring back to the BOG in six months a report of how things have progressed.

4. Rules and Ethics Opinions

A. Legal Ethics Committee

    1. Proposed Formal Opinion - Contact through Web Sites (00-04R)

Action: After discussion of the draft opinion, Mr. Lopez moved, Mr. Davis seconded, to approve the recommendation of the Legal Ethics Committee to issue 00-04R as a formal ethics opinion. The motion carried unanimously.

EXHIBIT 1

5. OSB Committees, Sections, Councils, Divisions and Task Forces

A. Client Security Fund

 

 

    1. Compton v. Gloyn CSF Claim 00-22 - Review of CSF Claim Denial

Action: After reviewing CSF Claim 00-22, Mr. Scott moved, Ms. Sowle seconded, to approve the CSF Committee’s recommendation to deny the claim. The motion carried unanimously.

B. Indigent Defense Task Force

    1. Indigent Defense Task Force Report

Mr. Lopez suggested Mr. Harnden, as president of the bar, send a copy of the report to the president of the OCDLA, suggesting the report be sent to each member of the OCDLA, thereby obtaining support from the defense bar and including the membership in the review process.

Mr. Lopez further indicated the report was a 'good product' though he believed it needs further work and would like to see the issue of Spanish speaking individuals addressed.

Discussion followed concerning the issue of how the recommendations should be implemented and by which entity. It was suggested the report be approved as is, but the recommendations should be forwarded to appropriate committees.

Action: Ms. Sowle moved, Mr. Williamson seconded, that the board approve the report. After discussion of the costs associated with approval of the report (which would be negligible), the motion carried unanimously.

Action: Mr. Hytowitz moved, Mr. Williamson seconded, that the board approve the first recommendation of the task force to support appropriate legislation and funding for indigent legal services. The motion carried unanimously.

Recommendations 2-6 will be sent to various committees as follows:

    1. Legal Ethics - #2
    2. Policy and Governance - #3, #5, #6
    3. MCLE - #4

The committees will be requested to present reports regarding their recommendations at the next meeting.

The President will send a letter of commendation to the task force for a job well done.

6. BOG Committees, Special Committees, Task Forces and Study Groups

A. Policy & Governance Committee

1. President’s Advisory Group on Future Issues

Action: The board approved unanimously the committee’s recommendation to create the President’s Advisory Group on Future Issues, with members to be appointed by the president primarily from the HOD. This committee will review emerging issues facing the legal profession and bring them to the board when appropriate.

The Appointments Committee will be asked to consider appointments to the group.

    1. MCLE Diversity Rule EXHIBIT 2
    2. Action: Mr. Williamson moved, Ms. Rinehart seconded, that the board send the new version (see EXHIBIT 2) of the MCLE diversity-training rule to the HOD for approval. The motion was not approved by the board (5-8-3; no Burrows, Davis, Harnden, LeSage, Lopez, Sowle, Tyner, Worcester; absent Anderson, Bryant, Scott)

      Action: Ms. Sowle moved, Mr. Tyner seconded, that the board approve the attached rule (see EXHIBIT 2) and that it be sent to the Supreme Court of approval. The motion was approved by the board (7-6-3; no Brown, Carter, Hytowitz, LeSage, Rinehart, Williamson; absent Anderson, Bryant, Scott).

    3. Convention Policies

Action: The committee moved and the board approved unanimously to delete policies 3.100 (B), 3.100 (C) and 3.202 from the BOG’s Policies and to change 3.100 (F) to read:

When a section event is co-sponsored by the Bar, the Bar will provide: meeting room rental, standard audio/visual equipment and operators, program materials, speaker materials, and publicity and marketing for the event.

4. Annual Awards Luncheon

Action: This item was held over until the next meeting.

Mr. Hytowitz indicated and Ms. Garst confirmed a decision must be made regarding the 2001 Awards Luncheon and the 50-Year Member Luncheon incorporated into the OSB Convention, which will be held in Seaside, September 19-20, 2001. Following are the options:

    1. Combined awards and 50-year member luncheon.
    2. De-couple the awards and 50-year member luncheon and have the awards luncheon at Seaside and the 50-year member luncheon at a different time and place.
    3. Combined awards and 50-year member events as a dinner.

After discussion, it was decided by consensus that the Annual Awards Luncheon will remain as is for the current year, 2001, and the matter will be referred back to the Policy and Governance Committee for further study and recommendation.

5. Client Security Fund Publicity

The Policies & Governance Committee will study this issue further.

6. Amendments to Bylaw 4.3 and BOG Policy 5.402(c)

Action: Ms. Sowle moved, Mr. Lopez seconded, to waive the one meeting notice required by Bylaw 4.2 (B). The motion carried unanimously.

Action: The committee recommended the adoption of the policy changes, which adjust certain board procedures to conform to the calendar year. The motion carried unanimously.

B. Public Affairs Committee

1. Brief report on kickoff of the legislative session

Mr. Tyner distributed a copy of the 'Public Affairs Committee Guidelines' and discussed the structure and responsibilities of the committee. Mr. Tyner also mentioned the January 13, 2001 committee planning meeting and related activities including several new legislative proposals of interest. EXHIBIT 3

Pursuant to previous discussion of the possible adoption of a statute regarding the payment of a fee for pro hac vice admissions in Oregon, the following actions were taken.

Action: Mr. Hytowitz move, Mr. Tyner seconded, to support the passage of enabling legislation that would allow the Supreme Court to establish a fee for pro hac vice appearances. The motion carried unanimously.

Action: Mr. Hytowitz moved, Mr. Tyner seconded, that such pro hac vice fees should be dedicated to the bar’s Legal Services Program. The motion carried unanimously.

Further action taken concerning upcoming legislation:

    1. Ms. Garst asked BOG members to contact her or Mr. Oleson with the names of legislators with which they have a relationship so the legislators can be contacted for support of the Bar’s legislative proposals.
    2. Because there is a lag in the time between application to serve on the BOG and BOG elections, the board might wish to seek authority to change the Bar Act so the board can set the date for the elections. The Policy and Governance Committee recommends the board support this legislative change so the board has the ability to set the dates for BOG, HOD and ABA elections.
    3. Action: Mr. Williamson moved, Ms. Burrows seconded, to support changing the Bar Act to allow the BOG to set the date of BOG elections. The motion carried unanimously.

    4. Mr. Tyner will keep the BOG informed of any information available on HJR 7, HJR 13 or other legislation pertinent to the bar.

4. Future agendas for the Public Affairs Committee will include discussion of a new bill on child abuse reporting and a new bill on opening medical board records to public inspection.

C. Access to Justice Committee

1. Legal Needs Study Part II - Recommendation

The Access to Justice Committee recommended beginning the process of setting up a task force, however it was suggested the issues which the task force would encounter could be better handled by the BOG’s Access to Justice Committee and other committees already formed. To establish another task force takes staff and funds, which are not available. The recommendation will be forwarded to the Access to Justice Committee to be dealt with at that level.

Mr. Anderson asked the committee to recommend the board make assistance for courthouse facilitation programs a number one priority. Rather than make that recommendation, the board will wait for Mr. Williamson to obtain the budget information so the board can make a more informed decision on the recommendation.

The Access to Justice Committee will hear a presentation by the Campaign for Equal Justice at its next meeting.

The committee is dealing with many issues at the moment, in particular the recent IOLTA decision from the 9th Circuit. The board needs to become familiar with the issues involved, as this is an important future issue.

D. Appointments Committee

1. OLF Board Appointment

Action: The board approved unanimously the committee’s recommendation that Mr. Lewis be appointed to the Oregon Law Foundation Board of Directors.

Following the motion was discussion concerning the manner in which the OLF appointment process is structured.

    1. Executive Director Review Special Committee
    1. Executive Session - Executive director evaluation and compensation.

Action: Ms. Sowle moved, Mr. Scott seconded, that the board accept the recommendation of HR Northwest for the range of compensation for the Bar’s Executive Director ($95,000 - $155,000) and a salary increase for the current Executive Director to $135,000, effective February 1, 2001. The board unanimously approved the motion.

The board will discuss the proper relationship between the compensation for the executive director of the OSB and the CEO of the PLF at its next meeting.

F. Awards Special Committee

    1. BOG role in 2001 awards program

Information about the nomination process is in the bar Bulletin. The committee would like to limit its awards to make them more meaningful to the recipients.

7. Appearances/Special Issues

    1. House of Delegates Follow-up
    2. Admission Reciprocity with Idaho and Washington

Mr. Riemer and Mr. Hytowitz summarized the proposal for the board.

Action: Mr. Williamson moved, Mr. Scott seconded, that the board approve the recommendation to submit the reciprocal admissions proposal with Idaho and Washington to the Supreme Court, conditioned upon the Board of Bar Examiners also approving it. The motion carried unanimously.

8. Consent Agenda Minutes

Action: Sowle moved and Worcester seconded that the Consent Agenda be accepted without change. The motion was approved (13-1-2; no Burrows; absent Anderson, Bryant.

A. Reading and approval of meeting minutes for

November 18, 2000 and December 1, 2000

B. Appointments Committee

    1. Appointment to Coos/Curry County LPRC
    2. Appointment to CPA (Joint) Committee
    3. Appointments to Quality of Life Committee
    4. Appointment to Affirmative Action Committee
    5. Designation of Secretary to Legal Heritage Interest Group
    6. Designation of Chair to Legal Services Program Committee
    7. Appointment to Public Member to Professionalism Commission

9. Open Session Default Agenda

A. Report of the President

1. News articles on Gatti/HOD meeting

2. General Correspondence

B. Report of the Executive Director

    1. Oregon Law Foundation

2. Operations Report

C. Client Security Fund Committee

1. CSF Claims Report

D. House of Delegates

1. Summary of special HOD meeting action

10. Good of the Order (Non-action comments, information and notice of need for possible future board action)

Mr. Harnden encouraged BOG members to keep Ms. Garst and him apprised of significant meetings board members will be attending or hear about over the upcoming months so there can be board representation and the board can make known its legislative agenda as well as establish an outreach program to the entire bar.

Special thanks went to Ms. Rinehart for opening her home for the reception and arranging dinner.

Mr. Williamson commended the staff on the way the legislators’ reception and the Supreme Court and Court of Appeals luncheon were handled.

Mr. Harnden mentioned there are Public Affairs Committee meetings scheduled for February 8 and 22, 2001, at 3:30 p.m. Further details and agenda information will follow from Mr. Harnden by fax.

The board briefly discussed additional issues BOG members felt were priorities:

Mr. Brown was concerned about the amount of time it takes to file complaints against lawyers and proposed having a work session to discuss the process. Ms. Garst explained LPRCs consist entirely of volunteers and because of that, unless the board is willing to allocate money for additional staff, the timeline will not change significantly. She further noted that the membership did not appear to see this as a significant concern.

This discussion brought up the issue of what topics should be considered priorities and brought before the board in upcoming work sessions and board meetings. After discussion the following choices were made.

    1. Discipline
    2. Communications
    3. Member Services
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