Oregon State Bar Meeting of the Board of Governors

August 14, 2001
Open Session Minutes

The meeting was called to order by President Ed Harnden on Tuesday, August 14, 2001, at 12:00 p.m. and adjourned at 12:30 p.m. Present via conference phone were Ed Harnden, Angel Lopez, John Tyner, Charles Williamson, Bette Worcester, Bruce Anderson, Mary McCauley Burrows, William Carter, Ronald Bryant, Malcolm Scott, Lisa LeSage, Gordon Davis, James Brown and Sarah Rinehart. Staff present via conference phone were Karen L. Garst, George Riemer and Teresa Bowen.

1.Judicial Selection Committee

A.Approval of highly qualified candidates for the vacancy of the Oregon Supreme Court.

Action:Ms. Burrows moved, Mr. Scott seconded and the board approved (yes 11: Mr. Lopez, Mr. Tyner, Mr. Williamson, Ms. Worcester, Mr. Anderson, Ms. Burrows, Mr. Harnden, Mr. Carter, Mr. Bryant, Mr. Scott and Ms. LeSage; absent 5: Mr. Hytowitz, Mr. Davis, Mr. Brown, Ms. Rinehart and Ms. Sowle) the committee’s recommendation of highly qualified candidates to be submitted to fill the vacancy on the Oregon Supreme Court.

2.Exemption of CSF Assessment for50-year Members

Action:Mr. Brown moved, Ms. Rinehart seconded and the board approved (yes 14; absent 2: Mr. Hytowitz and Ms. Sowle) the committee motion to exempt 50-year members from paying CSF assessments.

3.2001 HOD Agenda

A.Approval of the 2001 HOD Agenda

The following corrections were made to the House of Delegates Agenda:

(1)6. Proposal to Increase Inactive Membership Fees (BOG Resolution No. 1) The proposed increase in fees for inactive membership should be $110 not $1,110.

(2)8. In Memoriam (BOG Resolution No. 2) Fritz H. Giesecke’s location should read Fairfax, Virginia.

Action:After much discussion Mr. Lopez moved, Mr. Williamson seconded, and the board unanimously approved amending proposed DR 1-102 (D) by removing the language which reads: 'and there is no other reasonable or practical way to obtain the information.'

Action:Mr. Lopez moved, Mr. Williamson seconded, and the board unanimously approved the following amended resolution for presentation to the House of Delegates on September 22, 2001:

Whereas, the OSB Board of Governors has formulated the following amendment to Disciplinary Rule 1-102 and recommends its approval by the OSB House of Delegates, pursuant to ORS 9.490(1).

Resolved, the House of Delegates approve the following amendment of DR 1-102 pursuant to ORS 9.490(1):

DR 1-102 Misconduct;

Responsibility for Act of Others

(A) It is professional misconduct for a lawyer to:

(1) Violate these disciplinary rules, knowingly assist or induce another to do so, or do so through the acts of another;

(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law;

(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(4) Engage in conduct that is prejudicial to the administration of justice;

(5) State or imply an ability to influence improperly a government agency or official.

(B) A lawyer shall be responsible for another lawyer's violation of these disciplinary rules if:

(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) The lawyer has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

(C) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.

(D) Notwithstanding DR 1-102(A)(1), (A)(3) and (A)(4) and DR 7-102(A)(5), it shall not be professional misconduct for a lawyer to advise clients or others about or to supervise lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer's conduct is otherwise in compliance with these disciplinary rules. 'Covert activity,' as used in this rule, means an effort to obtain information on unlawful activity through the use of misrepresentations or other subterfuge carried out by publicly funded law enforcement agencies, including the federal and state departments of justice and district attorneys, and publicly funded civil rights enforcement agencies, including nonprofit organizations such as legal services offices and fair housing entities and any other lawyer acting in the role of private attorney general. 'Covert activity' may be commenced by a lawyer or involve a lawyer as an advisor or supervisor only when the lawyer in good faith believes there is a reasonable possibility that unlawful activity is taking place or will take place in the foreseeable future.

Mr. Riemer will draft a letter for Mr. Harnden’s signature to Justices DeMuniz, Durham, and Gillette encouraging them to communicate their impressions of proposed DR 1-102(D). It is the hope of the board that the justices will indicate their specific concerns with the proposed DR or their support of it, thereby assisting in the passage of an appropriate disciplinary rule, which will be acceptable to the Oregon State Supreme Court.

Action:Mr. Anderson moved, Mr. Williamson seconded, and the board unanimously approved the preliminary agenda for the 2001 House of Delegates, as amended.

B.Approval of 2002 BOG Fee Resolution

Action:Mr. Scott moved, Mr. Williamson seconded and the board unanimously approved the recommendation to approve the 2002 BOG Fee Resolution to be sent to the HOD for approval.