Oregon State Bar
Meeting of the Board of Governors
April 6-7, 2001
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 Agenda
The meeting was called to order by President Ed Harnden on Friday, April 6, 2001, at 12:45 p.m. and adjourned at 5:10 p.m. with work sessions running from 1:00 p.m. to 3:00 p.m. Present on Friday, April 6, 2001 were Ed Harnden, Angel Lopez, William Carter, Gordon Davis, David Hytowitz, Bruce Anderson, Malcolm Scott, Sarah Rinehart, Charles Williamson, James Brown, John Tyner, Lisa LeSage, Ronald Bryant, Mary Burrows, Bette Worcester. Angel Lopez and John Tyner left at 3:00 p.m. and Lisa LeSage left at 4:42 p.m. Staff present were Karen L. Garst, George Riemer, Rod Wegener, Bob Oleson, Jeff Sapiro, Ira Zarov, Kay Pulju, Sylvia Stevens, Marlyce Gholston, Teresa Bowen and Paul Nickell. Others who were present from 4:00 p.m. to 4:30 p.m. included Katherine O’Neil, Gordon Dodds, Cathy Alzner, Carolyn Buant, Jack Collins, and Nancy Cooper.
At 9:00 a.m. on Saturday, April 7, 2001, the Open Session of the Board was reconvened and adjourned at 11:45 a.m. Present were Ed Harnden, Angel Lopez, William Carter, Gordon Davis, David Hytowitz, Bruce Anderson, Malcolm Scott, Sarah Rinehart, Charles Williamson, James Brown, John Tyner, Lisa LeSage, Ronald Bryant, Mary Burrows and Bette Worcester. Staff present were Karen L. Garst, George Riemer, Rod Wegener, Bob Oleson, Jeff Sapiro, Teresa Bowen and Ira Zarov.
A.Discipline Process and Outcomes
The board heard a presentation from Jeff Sapiro, Disciplinary Counsel. Mr. Sapiro explained to the board the disciplinary process and described its strengths and weaknesses. One of its weaknesses is delays and he illustrated some of the reasons and examples for those delays. Oregon’s process, in comparison to other states, is more simplified, but delays still occur. Mr. Harnden asked BOG members to communicate any ideas for improvements to him. The BOG will revisit the program to consider these ideas at a later date.
B.Communications Department Programs and Services
Kay Pulju, Communications Manager, gave a presentation regarding the programs she supervises in the communications area. The communications programs deal with both member communications (Bulletin, Bar News, web site) and public communications (web site, legallinks [cable TV program]). Kay also supervises the operations of the Referral and Information Services Department.
1.Report of Officers
Mr. Harnden reported on a recent meeting with the Chief Justice, which centered around the current legislative session.
Kateri Walsh attended the Judicial Conference, after the conference she met with presiding judges and her staff are putting together a communications, media, publicity packet for use by the judges. HB 3677 was discussed, which deals with the process for the Supreme Court to follow when considering an ambiguous statute. The Chief Justice is opposed to the bill, especially the wording. The Chief Justice was informed of the status of the reciprocity issue and the efforts Mr. Riemer has put forth to enable the process to move forward. There is no member of the Supreme Court who is unequivocally opposed to reciprocity and there appears to be a good chance of getting it passed once it gets to the court. It is currently at the Board of Bar Examiners and on April 27, 2001, the BBX will make a decision whether to pass it on to the court. The Judicial Department budget left Ways and Means $15 million short of the current service level. This figure does not include items such as court facilitators that are outside the current service level. Neither does it include any money for new judges or increases in judicial salaries. Items also discussed were a proposed study of court facilities and HJR 7 that would create a new appointment process for judges. Nothing definitive has yet been decided regarding In re Gatti and the Supreme Court will consider the bar’s purposed disciplinary rule change the week of April 9, 2001.
Mr. Harnden and Ms. Garst will be visiting the county bars and making editorial visits in Eastern Oregon April 9-12, 2001 and Mr. Lopez and Ms. Garst in Southern Oregon May 15-17, 2001. They will distribute material concerning the bar’s legislative agenda and inform bar members of ways to contact legislators for assistance in advancing the bar’s legislative agenda as well as discussing the other current issues.
Though the meeting with the Multnomah Bar Association had no agenda nor was there voting on issues, there were excellent informal discussions and the meeting was a rewarding way of interacting with the MBA, which is very influential with a membership of approximately 4,000.
The board was referred to Mr. Riemer’s summary memorandum concerning the WSBC. Mr. Harnden elaborated by adding his observations. He noted that all bars, large or small, are dealing basically with the same issues. Oregon was ahead of many of the states on the activity level of members and the Board of Governors, as well as in the area of strategic planning. At the WSBC Mr. Riemer headed a panel discussion on multi-jurisdictional practice and Mr. Harnden headed a panel on Access to Justice issues. The new incoming ABA President discussed various issues including new lawyer debt levels, the inadequacy of the organized bar’s pro bono efforts and the cycle of ever-increasing firm billable hour requirements.
Mr. Harnden requested that all board members read the book In the Interest of Justice - Reforming the Legal Profession for review at the next board meeting and Mr. Harnden will prepare an informational report on Access to Justice for discussion.
At the June, 2001 meeting, the board will discuss strategic planning as related to Access to Justice – what are the top issues relating to Access to Justice; what can the bar do strategically to further Access to Justice and how does it fit into the bar’s overall strategic plan? Mr. Harnden asked board members to contemplate these issues and come to the June meeting prepared to give him their best ideas of how to move forward on Access to Justice.
Mr. Harnden met with the Campaign for Equal Justice to discuss its goal of closer cooperation with the bar on Access to Justice issues and he will make a progress report to the board at the June meeting on this subject.
Action:Ronald Bryant was sworn in as a member of the Board of Governors.
The admissions ceremony will be at Willamette University in Salem, Friday, April 20, 2001, at 1:00 p.m. or 1:30 p.m. Mr. Harnden encouraged the members to attend; those wishing to attend should contact him for the exact time and directions. The past BOG dinner will be held June 1, 2001, at the Multnomah Central Library. The board was advised to contact the past BOG members in their regions to encourage them to attend; members outside of the Portland Metro area were especially encouraged to contact their past BOG members to assist in making this a well-attended event.
B.Report of the President-Elect
Mr. Lopez reported on some of the events and issues discussed at these meetings. Martha Barnett, current President of the ABA, provided a compelling presentation on the ABA’s moratorium on the death penalty. The Oregon State Bar mirrors the ABA’s stance on Access to Justice issues. Salaries for indigent attorneys are too low in comparison to their counterparts. Salaries for judges are also too low and to continue to attract talented individuals it will become increasingly necessary to compensate them at a higher level. Regarding diversity on the bench, not only is it important to diversify in the areas of gender and ethnicity, but there is also the issue of economic diversity, which needs to be addressed. Multi-jurisdictional practice is occurring as a practical matter. Bar efforts to simplify the rules are now starting to get attention. The effect of technology on the practice of law was a recurring theme. The ABA President-Elect discussed the long-standing relationship the ABA and the Office of the President of the United States have had in evaluating federal judicial appointment candidates. The ABA would like to continue this mutually advantageous relationship; however, indications are that the present administration in Washington, D.C. is seeking its own counsel and will not be looking to the ABA for assistance in the future.
The indigent defense budget has made it through the House and is on its way to the Senate without apparent opposition. Jack Morris and Ann Christian put extra effort into accomplishing this and were able to assist in securing a budget of $164 million. There is an ongoing disparity between the salaries of defense attorneys and DAs in this year’s budget and there appears to be no change in sight for the current year, however, there is a chance this may be remedied next legislative session.
C.Report of the Executive Director
The Oregon Law Foundation had a legal opinion prepared on the impact of the 9th Circuit’s recent IOLTA decision. The Foundation is comfortable with continuing to administer the current program and will join with other groups to challenge the 9th Circuit’s decision.
The ABA will hold its Law Practice Management Section meetings at Salishan Lodge in October 2001, and has invited the Oregon State Bar Board of Governors to join the section for their sessions. To accommodate this, the October 26, 2001 committee meetings will be moved to Thursday, October 25, 2001, so those board members interested in attending the ABA Law Practice Management Section meetings will be able to participate Friday, October 26, 2001. Those interested in attending should contact Teresa Bowen, Executive Assistant, so she can make arrangements with the Section for rooms and meeting space.
The bar sponsors a personal credit card, through MBNA, available to bar members. This year they are adding two enhancement products: an investment certificate of deposit and a business credit card which allows a participating firm to have a corporate credit card. In 1998 the bar received $12,000 non-dues, non-member revenue from this source and in 2001 it is projected to receive approximately $20,000. Regarding Human Resources, Ms. Garst shared that the bar is at 100% hire. She distributed the results of program outcomes evaluation for 2000.
The Supreme Court has approved the MCLE Diversity Rule. Those wanting more information can refer to the handout provided by Ms. Stevens or to the upcoming article in the May issue of the Bulletin. This will be a topic for upcoming meetings including the various bar visits and brown baggers scheduled for the near future. Mr. Williamson asked if bar members are being made aware of this new requirement. Ms. Garst indicated this would not be a problem because the rule does not go into effect until the 2004 reporting period and the bar is beginning to offer programs with the new requirements in mind.
2.Rules and Ethics Opinions
A.Legal Ethics Committee
Nancy Cooper discussed DR 5-101 with the board. For several months the committee reviewed the information concerning whether an attorney should be able to receive a commission or fee from a financial consultant for referring a client to the consultant. Though the committee was split on its decision and was not truly pleased with the final draft of the opinion, there is nothing in the current DRs that would make taking a commission or fee from a financial consultant for referrals illegal, provided it was fully disclosed by the attorney to the client.
Action:After much discussion, Mr. Williamson moved, Mr. Carter seconded
that the opinion be referred back to the Legal Ethics Committee and that the committee draft a rule making it unethical for an attorney to accept a fee or commission, with or without disclosure, from a consultant for referring a client to the consultant. The motion carried unanimously.
B.Disciplinary Rules and Procedures Committee
Mr. Sapiro summarized changes to the Bar Rules of Procedures recommended last year by the BOG. The Supreme Court recently approved most of them and referred those that were not approved back to the BOG for minor changes. Mr. Sapiro also summarized BR 4.4(a) stating that upon reviewing it, he would recommend the board not make changes to the original rule and withdraw the previous amendment altogether.
Action:Mr. Williamson moved to adopt the Supreme Court’s changes except for BR 4.4(a) and that the board withdraw the recommendation to amend BR 4.4(a), Ms. Worcester seconded the motion and it carried unanimously.
3.BOG Committees, Special Committees, Task Forces and Study Groups
A.Policy & Governance Committee
There has been a significant decline in bar member participation in the areas of volunteerism and participation in bar organizations. Therefore the committee recommended that the board create a board recruitment standing committee.
Action:The board voted on the committee motion to create a board standing
recruitment committee and the motion carried unanimously.
2.Client Security Fund Publicity
The committee submitted proposed CSF Rule 6.5 to avoid the CSF Committee from having to go to the board each time it wanted to publicize a claim payment. There are two issues involved in making CSF matters public: (a) the exposure of unethical lawyers to the public; (b) the legal profession’s demonstration to the public that it can and will police itself in an appropriate manner.
Action:The committee recommended and the board passed unanimously Rule 6.5, which reads:
The Committee shall from time to time issue press releases or other public statements about the Fund and claims that have been paid. Press releases and other public statements shall include the name of the lawyer, the amount of reimbursement, the general nature of the claim, the lawyer’s status with the bar and whether any criminal action has been instituted against the lawyer for the conduct giving rise to the loss. If the claimant has previously initiated criminal or civil action against the lawyer, the press release or public statement may also include the claimant’s name. The press release or other public statement may also include general information about the Fund, what claims are eligible for reimbursement, how the Fund is financed, and who it contacts for information. All press releases or other public statements shall be coordinated with the Communications Manager and conform to BOG Policy 1.600.
1.Reimbursement of expenses for members’attendance at HOD meeting
Mr. Scott gave a report on the findings of the Budget and Finance Committee concerning the reimbursement of HOD members when attending HOD meetings. While it is true some members could participate by phone, that defeats the purpose of getting the members together to interact and communicate in person. The committee suggested members living more than 50 miles from the location of the HOD meeting should be reimbursed for mileage.
Action:There was a great deal of discussion, the issue was left undecided and the board, by consensus, referred the matter to the new Recruitment Committee.
The Legal Heritage Interest Group ('Group'), led by Katherine O’Neil, joined the board meeting to petition for funding of its book of the history of the Oregon State Bar. Professors Gordon Dodds and Cathy Alzner informed the group of the process of compiling the information and preparing the manuscript. The rough draft is completed and the final draft should be ready by July, 2001. The Group submitted a document with the names of those interviewed for the book and asked board members to review the list and determine if they knew of others who should be contacted and interviewed. They were also asked to submit any photos or information pertaining to the chronology, which they felt, would be helpful to the completeness of the book. Carolyn Buant summarized the process for printing the final product. The book is patterned after a similar one done in Minnesota. The final copy will have a full color cover and the book itself will be in two colors, 5½ ' X 8½' and will be similar to a coffee table book. The Group proposed printing 2,000 paperbacks and 200 hard copies of the book. The retail price would be $35 for the paperback and $55 for the hard copy. Printing would be done in the Midwest because past experience shows it to be more economical. The Group and the board reviewed the budget to complete the project. To get the book to archive stage will require it to be completed, edited and proofed. For completion to production it will also need work with the designer and printer and finally marketing and production, with a final projected budget of $42,620. To get the book to archive stage will cost approximately $10,000. If the book goes all the way to production, the Group estimated the bar would recoup all costs and any excess could be used for marketing and to further defray production costs. Paul Nickell, editor of the OSB Bulletin, discussed his experience with publishing books. His sense of the project is it seems to be a topic of interest to bar members and it should sell well. Concerning marketing, he suggested full-page ads in the bar Bulletin, which are free for bar activities, when space is available. He also suggested the Oregon Historical Society might have interest in the book and have been interested in overseeing and warehousing similar projects in the past. There were questions concerning whether funding of the book had been a previous issue and if there was money in the budget. The board indicated to Ms. O’Neil that it would take the issue under advisement and get back to her on the amount of funding the board would be willing to provide and the conditions under which such funding would be made. After the Group left, Mr. Scott informed the BOG that Ms. O’Neil had spoken with the Budget and Finance Committee earlier that day. Though the committee felt the book project was an honorable undertaking, it did not feel it fell within the BOG’s priorities for strategic planning. The remaining funding would have to come from the contingency fund because it is not part of the current budget. The committee also felt the Group should have a marketing plan and there was none. The committee recommended that the bar loan the Group enough money to complete the information gathering process and to bring the project to the point of preservation contingent upon the Group submitting a viable marketing plan. It also recommended that the bar’s financial participation end at the $10,000 level.
Action:Mr. Anderson moved to table the matter and Mr. Brown seconded.
Further discussion ensued and Mr. Harnden summarized the board’s discussion: the board would like the Group to complete the book to archival point and the board would revisit additional funding at its June 2001 meeting.
Action:Mr. Anderson withdrew his previous motion and Mr. Davis moved to have the board request that the Group provide a breakdown of costs to archive the project and present it to the board by May 15, 2001 and the board would review the matter at its June 2001 meeting. Mr. Williamson seconded the motion.
Further discussion ensued.
Action:After considerable discussion, Mr. Davis redefined his motion by moving that the board ask the Group to do sufficient work on the manuscript to create a document to archive point. Mr. Scott seconded the motion and the motion carried unanimously.
Saturday morning a representative from the Legal Heritage Group returned to the board with a summary of information from the previous day’s presentation and proposed that the board provide $9,180 to bring the manuscript to the archive stage.
Action:Ms. Burrows moved, Mr. Scott seconded and the motion was carried (8-6; no: Anderson, Hytowitz, Williamson, Brown, Rinehart, LeSage; absent: Sowle) for the board to provide $9,180 to bring the manuscript to the archive stage. The board understood the Group would present a complete marketing plan to the board at a later date.
C.Public Affairs Committee
1.General Legislative Report
Mr. Oleson distributed a handout with legislative contacts and BOG members were encouraged to contact their legislators and discuss the bar’s agenda with them. There were also samples of how letters should be addressed to the various dignitaries and talking points to be discussed. This is a crucial time at the legislature because things tend to move very quickly at this stage in the session and bills tend to be introduced on the spur of the moment. Though bar funding does not go through the legislative budget process, the judicial budget does. The judicial branch has not been treated kindly in the budget process in the past however, this year things appear to have improved and there is a possibility that some of the items previously cut will be added back into the budget. There are four bills, which were discussed by Mr. Oleson and Mr. Harnden, about which the BOG will probably receive questions and with which they should make themselves familiar: (a) HB 3677 - the statutory construction bill, (b) court facilities study, (c) judicial budget and (d) HJR 7. Mr. Tyner commended Mr. Harnden, Ms. Garst, Mr. Oleson, Ms. Grabe and the bar staff for their contributions and diligent work in Salem.
There is a budget shortfall of $15 million, though there is still 'wriggle room' and a possibility that the judiciary can get some of its requests for funds through the Ways and Means Committee and into the budget.
D.Access to Justice Committee
Mr. Williamson reported the committee has contacted Linda Clingan for a presentation at the May A to J Committee and the June BOG meeting concerning the efforts for pro hac vice fees, Endowment and General Fund for legal aid.
E. Awards Special Committee
Mr. Hytowitz reported that the Awards Committee has received three nominations for awards. He indicated this is not unusual because in the past most award applications came in during the week of the deadline. Nonetheless, he encouraged the board to remind members of the bar they come in contact with to submit their nominations. The deadline for nominations is April 20, 2001. To submit a nomination the submitter need only send a letter to Mr. Hytowitz or Ms. Bowen and can follow up with the official form at a later date. After all of the nominations are completed a notebook will be compiled for the members of the committee to review. The members will evaluate the nominations and then make its recommendations regarding the awards.
4.Professional Liability Fund
Mr. Zarov reported the PLF had lost $7.8 million in 2000. Though this seems to be a large amount, it is not alarming as the fund is still in excellent financial condition with $2.2 million in retained earnings. The year 2000 was an anomaly and the losses were due in part to the volatile stock market and in part to large claims settled during 2000. Though the number of claims was not substantially more than previous years, the amount paid out on each claim was higher than previous years. Due to the apparent increase in the severity of claims, the PLF is considering a possible increase in the assessment next year. The timeline for the decision on whether there would be an assessment increase will be completed by the BOG meeting in September 2001. Even if the large cases were factored out of the budget, the claims and losses overall for 2000 were more severe than in years past. The number of claims did not impact the fund as significantly as the severity of the claims. It is too early to tell if this can be construed as a trend. The communications between the bar and the PLF is excellent and the two bodies are coordinating information. The upcoming move for the PLF is proceeding well. Currently the PLF is looking at tenant improvements and all is going well. Once the PLF moves out of its area, the carpets will be replaced in the work areas and Discipline will move in. A committee of bar staff members will review the different areas and with the help of a designer determine the location of departments with the anticipation that Executive Service will be located on the first floor and CLE Publications will have an area on the second floor. At the next BOG meeting, Mr. Zarov will present information regarding how PLF budget issues are decided.
5.OSB Committees, Sections, Councils, Divisions and Task Forces
A.Client Security Fund
Action:Mr. Scott recommended that the board accept the recommendation of the committee to pay the claims. Mr. Williamson seconded the motion and the motion carried. (13-1; abstaining: Mr. Brown, absent: Ms. Sowle)
After the vote, Mr. Hytowitz informed the board he believed that in at least one instance the PLF might pay the claim. If this occurs, he suggested the CSF be reimbursed.
A.Reinstatements – Demonstration of Competency by Applicants
Mr. Sapiro clarified the demonstration of competency upon reinstatement requirements. When the board approves reinstatement under BR 8.1, it is a recommendation only and the Supreme Court makes the final decision. Regarding the issue of having applicants retake the bar exam, this is an option, which is rarely implemented; it is more common to have the applicant take additional CLE hours. If an applicant has been practicing law in another jurisdiction during the time he/she is inactive in Oregon, there usually is no need for additional CLE hours, however if the applicant has been away from the practice of law for an extended time period, additional CLE hours are usually recommended. For reinstatement applicants involved in drug and/or alcohol abuse, the board may reinstate the person conditional on the completion of a drug/alcohol rehabilitation program or compliance with other requirements.
Did not appear
Did not appear
D.Administrative Law Section’s Request to file Amicus Brief – Ford v. Board of
Parole and Post-Prison Supervision
Mr. Riemer discussed the Administrative Law Section’s request to file an amicus brief in the case of Ford v. Board of Parole and Post-Prison Supervision. He indicated the request fits within the board’s policy.
ActionMr. Davis moved, Ms. Burrows seconded to approve the filing of an
amicus brief by the Administrative Law Section in the case of Ford v. Board of Parole and Post-Prison Supervision and the motion carried unanimously.
Action:Mr. Lopez moved, Ms. Rinehart seconded to accept the Consent
Agenda without changes and the motion carried unanimously.
A.Reading and approval of meeting minutes for January 25-27, 2001
Attorney Members to Region 1 and Public Member to Region 6.
6.Appointment to Quality of Life Committee
7.Appointment to Multnomah County LPRC
C.Policy and Governance Committee
1.Oregonian editorial on Multnomah County Courthouse
2.Eugene Register-Guard Articles on Access
1.U.S. Supreme Court Decision Regarding Legal Services Restrictions
2.Member Legal Research Survey Done by Columbus (Ohio) Bar Association
D.Disciplinary Counsel’s Annual Report
E.Budget & Finance Committee
1.Summary Report on 2000 OSB Financial Statements
9.Good of the Order (Non-action comments, information and notice of need for possible future board action)