Oregon State Bar
Meeting of the Board of Governors
June 1-2, 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, June 1, 2001, at 4:37 p.m. and adjourned at 4:50 p.m. with work sessions running from 1:00 p.m. to 4:30 p.m. Present on Friday, June 1, 2001 were Ed Harnden, Angel Lopez, William Carter, Gordon Davis, David Hytowitz, Bruce Anderson, Malcolm Scott, Charles Williamson, James Brown, John Tyner, Lisa LeSage, Ronald Bryant, Mary McCauley Burrows, Bette Worcester, Agnes Sowle. Staff present were Karen L. Garst, Bob Oleson, Kay Pulju, and Teresa Bowen.
At 9:00 a.m. on Saturday, June 2, 2001, the Open Session of the Board was reconvened and adjourned at 12:48 p.m. Present were Ed Harnden, Angel Lopez, William Carter, Gordon Davis (9:20 a.m. arrival), David Hytowitz (9:20 a.m. arrival), Bruce Anderson, Malcolm Scott, Sarah Rinehart (9:20 a.m. arrival), Charles Williamson, James Brown, John Tyner (11:11 a.m. departure), Lisa LeSage, Ronald Bryant, Mary McCauley Burrows (9:20 a.m. arrival) and Bette Worcester. Staff present were Karen L. Garst, George Riemer (via telephone), Bob Oleson, Jeff Sapiro, Teresa Bowen and Ira Zarov. Guests present were Bob Nunn, Linda Clingan, Michael Mason, Henry Hewitt, David Thornburgh, Eric Lindauer, Bob Weaver and Alec Shebiel.
- Member Services Department
- Strategic Plan 2003-2005 – Access to Justice
- Discussion Regarding Disciplinary Process
The Member Services Department gave a presentation highlighting its various programs and services including working with sections, committees, local bar associations, the New Lawyers Division, administration of elections and polls, and its involvement in the board appointment process.
The board articulated Access to Justice as its primary strategic initiative in 2002-2005. Existing programs regarding ATJ include the Bar’s Legal Services Program, Lawyer Referral Program and Modest Means Program. The board discussed the current joint ventures with Campaign for Equal Justice and the Oregon Law Foundation. The Access to Justice Committee will review existing programs and recommend possible changes or additions at the BOG’s July meeting.
The board decided to appoint a small group to conduct a short term study of the disciplinary process and have the group recommend changes to the board focusing on improvements in timeliness of processing a disciplinary complaint and what actions should be taken against uncooperative attorneys.
1.Report of Officers
- Report of the President
- Local Bar Visits – Eastern Oregon
- ABA Harrison Tweed Award.
- Tri-State Reciprocity Admission Rule Proposal
Mr. Harnden and Ms. Garst visited with the local bars in Eastern Oregon. They found it gave them a perspective on the concerns and needs of that part of the state. They discussed issues such as reciprocity, diversity and CLE programs
The OSB has been awarded the Harrison Tweed Award, which is given by the ABA to bars that have been instrumental in the access to justice arena. Former President Larry Rew and President Ed Harnden will accept the award for the OSB at the ABA’s Annual Meeting in Chicago in August.
Action:Mr. Hytowitz moved, Mr. Tyner seconded and the board unanimously passed a motion to accept the Board of Bar Examiners’ revised version of the tri-state reciprocity admission rule, Proposed Rule 15, and to forward the rule to the Supreme Court for approval with an implementation date of January 1, 2002. The BBX asked for the appointment of a small BOG committee to assist with the implementation. Mr. Harnden appointed William Carter, David Hytowitz and George Riemer to report back to the board at its July meeting.
Mr. Harnden attended the reception for Minority Students and the Admissions Ceremony for those who passed the bar exam. There will be an auction for the Minority Lawyers on June 21, 2001.
- Report of the President-Elect
- Meeting with Chief Justice Carson
- Local Bar Visits – Southern Oregon
Mr. Lopez indicated they discussed the $15 million shortfall in the judiciary budget. There may be an add back package for an increase to circuit court judge salaries only, which would leave the appellate and the Supreme Court salaries where they are. Mr. Lopez and Mr. Williamson had met with Justices Gillette, DeMuniz and Durham, concerning revisions of the previously rejected Gatti rule, however nothing of substance was decided. The bar has also received a letter from Michael Schrunk on the Gatti issue expressing his opinion that the board's efforts were inadequate. Mr. Lopez and Mr. Williamson believe it would be advantageous to speak personally with Mr. Schrunk and explain to him the complexities of the Gatti matter. The board briefly discussed avenues they could pursue concerning the Gatti decision.
Issues discussed included diversity, CLEs and Gatti. The local bars seemed very interested and supportive of the BOG and what it was trying to accomplish.
Mr. Lopez has been invited by the ABA to discuss Affirmative Action in conjunction with its annual meeting. Oregon is held up as a model to other states regarding the way that it has advanced affirmative action issues. In August Mr. Lopez will participate in the OLIO Program, which is a program to introduce incoming law students to what they can expect in the world of law. Ms. Yamata, the point person for diversity issues at the ABA, will be invited to take part in the OLIO Program. Mr. Williamson and Mr. Sapiro gave an update on the Gatti issue, meetings with Justices Gillette, DeMuniz and Durham and possible solutions to the matter. Discussion ensued. Mr. Harnden referred to a meeting of the Public Affairs Committee at the end of August or early September to discuss progress made on bar priorities during the session and future legislative priorities. Bob Oleson will speak to the matter at the September board meeting.
C.Report of the Executive Director
- Update on CLE Publications
CLE Publications is near the breakeven point. Provided it stays on track, it will be in a much better position at the end of 2001 than in previous years and is moving in the right direction.
2.Rules and Ethics Opinions
A.Legal Ethics Committee
- Proposed Formal Opinion 2001-165
- LEC Report on DR 5-103
The Board reviewed information presented by Nancy Cooper concerning Proposed Formal Opinion 2001-165 – Indemnification Against Claims by Non-Client. The Legal Ethics Committee opined that attorneys are eligible to seek indemnification from third party or non-client liability from their clients.
Action:Mr. Bryant moved and Mr. Williamson seconded the motion to approve Proposed Formal Opinion 2001-165 without change. The motion carried unanimously.
Nancy Cooper reported the LEC reviewed DR5-103 and prepared a report, which stated the committee’s opinion that the rule needs no change. Discussion ensued concerning possible problems with the report and if the rule should be forwarded to the HOD with or without comment and/or recommendation.
Action:Mr. Williamson moved and Ms. Worcester seconded that the Board forward the LEC Report on DR 5-103 to the HOD for its information only. The motion passed unanimously.
3.BOG Committees, Special Committees, Task Forces and Study Groups
- Public Affairs
- General Legislative Report
Mr. Tyner and Mr. Oleson updated the board on issues in Salem including: $15 million shortfall in the Judicial Department budget, the court facilities bill, changes to the Bar Act, pro hac vice update, Section 437 which modifies the evidence rules for doctors and psychologists, the 'slap suit' bill and family court facilitators.
- Appointments Committee
Action:The committee’s motion that SPRB members’ terms be extended from three years to four years and that the current members who are willing to extend their term be allowed to do so passed unanimously.
Action:Ms. Sowle moved and Ms. Rinehart seconded to waive the one meeting notice requirement. The motion carried unanimously.
Action:Ms. Rinehart moved and Mr. Bryant seconded a motion to amend Bar Bylaw 14.4 to correspond to the change to BR 2.3 (b). The motion carried unanimously.
Action:The board unanimously passed the committee recommendation to present the following people awards at the September Awards Luncheon in Seaside: Membership – Jeffrey Johnson, John Richardson, Kelly Hagan, Claudette McWilliams, Janice Krem and Diana Stuart; Public Service – Judge Ellen Rosenblum; Affirmative Action – Tom Kranovich and Cynthia Carlson; Award of Merit – Vernon Gleaves; President’s Discretionary – Stephen Walters.
D.Public Member Selection Committee
Mr. Davis reminded the BOG it would be necessary to replace him as a Public Member next year. All recommendations and requests for information should go to Donna Richardson so the Appointments Committee can forward its recommendation to the board at the July meeting.
E.Access to Justice
- Access to Justice Conference 2002
Mr. Williamson reviewed the committee recommendation to fund $10,000 for the Access to Justice Conference 2002. Discussion ensued, noting that though funding has been provided in previous years, this is not a line item and should be added to future budgets if appropriate. Further discussion continued regarding whether to fund this amount now or refer it to the Budget and Finance Committee.
Action:Due to the timeliness of this matter, Ms. Rinehart moved and Mr. Bryant seconded the request for $10,000 for the Access to Justice Conference 2002 without referral to the Budget and Finance Committee. The motion carried unanimously.
4.Professional Liability Fund
- General Update
- Update on Move
- Multi-Jurisdictional Issues
The fund has recouped much of its investment losses and continues to function well with good communication with the bar. There is no definitive information on the assessments, but Mr. Zarov should have a more accurate idea of the needs by August.
The move will take place in August with an open house in late fall.
There is an anomaly regarding some lawyers who practice in Oregon but have their principal office elsewhere, which allows them to practice law in Oregon without carrying liability insurance. Mr. Zarov will come back to the board in November with recommendations on how to close this loophole.
- Campaign for Equal Justice
- ABA Delegates
1.Eric Lindauer, Henry Hewitt, Michael Mason, David Thornburgh and Linda Clingan appeared to thank the bar and certain individuals for their participation both financially and by actions in the Campaign for Equal Justice and to solicit the bar for additional funding. The Campaign has no funding of its own, however it has been able to raise $6.8 million through grants, joint ventures, partnering, endowments, legislative funding (both federal and state) and it looks to raise an additional $2 million over the next two years from lawyers. They propose to obtain additional funds by partnering with the OSB, expanding legislative efforts, obtaining general fund support and an increase in federal funding.
Action:Mr. Williamson put the committee motion before the board that the OSB provide $50,000 to the Campaign for Equal Justice one half of which would go to the endowments effort and one half to federal efforts. Discussion ensued regarding how the request fit into the strategic plan for the BOG and the belief that the request, even though it falls within the board’s Access to Justice criteria, should have gone through the Budget and Finance Committee for approval before it was brought to the board.
Action:After Mr. Lopez raised a point of order regarding the motion which was on the floor, Ms. Rinehart moved and Mr. Hytowitz seconded to table the motion. The motion was carried unanimously.
Action:Ms. Rinehart moved and Mr. Hytowitz seconded to refer the matter to the Finance and Budget Committee with the Access to Justice Committee providing benchmarks and criteria to the Finance and Budget Committee and to jointly present a recommendation for funding at the July meeting. The motion carried unanimously.
- Mark Johnson, Judge Ellen Rosenblum and Adrienne Nelson appeared before the board. Mr. Johnson discussed many of the upcoming issues before the ABA including the resolution on the right to life vote (Oregon will abstain), obtaining personal information by use of social security numbers, multi-jurisdictional practice and the vote on revised ethics rules. The deadline for proposals for the ABA Annual Meeting in August is July 16, 2001. Judge Rosenblum indicated there is a possibility that Oregon will host the ABA Annual Convention in several years. This would require assistance from the OSB. Mr. Johnson further brought up the issue of Gatti. The ABA is very interested in the case and there may be a possibility they would be able to assist the OSB in the case. Mr. Johnson will be unable to attend the ABA meeting in Philadelphia and the BOG needs to appoint an alternate at its July meeting. Mr. Johnson suggested Mr. Lopez as an alternate.
- Special Issue – USA v OSB
Action:Following Executive Session, Mr. Scott, in Open Session, moved and Ms. Rinehart seconded that the OSB defends the lawsuit and retains Mr. Weaver and his firm to do so.
Action:Mr. Scott amended his motion and moved that the OSB defend the lawsuit, retain Mr. Weaver and his firm and give Mr. Weaver, Mr. Harnden and Mr. Riemer authority to proceed with the lawsuit without further action of the board. Ms. Rinehart seconded the amendment and the motion carried unanimously.
Ms. Rinehart asked that the appointment to the Affirmative Action Committee (C.7) be removed from the Consent Agenda and be put on the July agenda.
Action:Ms. Sowle moved and Mr. Bryant seconded the Consent Agenda be approved with the removal of item C.7. The motion carried unanimously.
- Good of the Order (Non-action comments, information and notice of need for possible future board action)