November 16, 2001
The board reviewed the strategic planning work conducted over the past several years which concluded in a mission statement; a set of core values; and a matrix organizing the bar's programs and services into four functional areas: a professional organization; a partner with the judiciary; a provider of assistance to the public; and a regulatory agency.
Following up on a previous discussion regarding access to justice, the board clarified a definition of access to justice that includes civil legal services for low-income Oregonians; indigent defense; and adequate judicial department resources.
The board heard a presentation from its Public Affairs Committee and the bar's Governmental Relations and Law Improvement Program. The board discussed key priorities for the next legislative session including access to justice (civil and criminal), judicial department resources as well as many law improvement issues.
November 17, 2001
Open Session Minutes
The Open Session was called to order by President Ed Harnden on Saturday, November 17, 2001, at 1:00 p.m. and adjourned at 4:10 p.m. followed by an Executive Session from 4:15 p.m. to 5:00 p.m. Present for the Open Session were Ed Harnden, Lisa LeSage, Agnes Sowle, Gordon Davis, John Tyner, Mary McCauley Burrows, Angel Lopez, William Carter, Ronald Bryant, Sarah Rinehart (departed at 3:54 p.m.), James Brown, Bette Worcester, Charles Williamson, Bruce Anderson, David Hytowitz, and Malcolm Scott. Staff present for the Open Session were Karen Garst, George Riemer, Rod Wegener, Bob Oleson, Susan Grabe, Ira Zarov and Teresa Bowen. Also present for the Open Session were Robert Nunn (PLF Liaison), David Carlson (ONLD Liaison), and the following new Board of Governors members: Nena Cook, Gerry Gaydos, and Frank Hilton.
Present for the Executive Session were Ed Harnden, Lisa LeSage, Agnes Sowle, Gordon Davis, John Tyner, Mary McCauley Burrows, Angel Lopez, William Carter, Ronald Bryant, James Brown, Bette Worcester, Charles Williamson, Bruce Anderson, David Hytowitz, Malcolm Scott, Nena Cook, Frank Hilton and Gerry Gaydos.
1. Report of Officers
1. Oath of Office for New BOG Members
Action: Mr. Harnden administered the oath of office to Nena Cook, Gerry Gaydos, and Frank Hilton.
2. Meeting with Chief Justice Carson
The meeting with the Chief Justice included discussion of pro hac vice fee implementation; a collections administrative charge on filing fees the bar was not made aware of; and the impact of the potential legislative special session on the Judicial Department budget. Other items mentioned included a meeting with the Washington State Bar Association Board of Governors.
3. Disciplinary Task Force
Mr. Harnden, Ms. Worcester, and Mr. Riemer briefed the board on the appointment of the task force and the topics covered at its first meeting on Saturday, November 10, 2001.
Report of the President-Elect
1. Meeting with the Governor’s Legal Counsel – Danny Santos
Mr. Lopez indicated that Mr. Santos has assumed the position of legal counsel to the Governor. Mr. Santos expressed his appreciation of the inclusion of legislative and executive representatives in the bar’s judicial selection process for appellate appointments.
2. Report on Diversity Convocation
Mr. Lopez reported on the diversity convocation held on Thursday, November 15, 2001. A number of board members and staff attended. Mr. Lopez thanked Ms. LeSage for her significant efforts in planning and putting on the convocation. It was a highly successful event.
2. Rules and Ethic Opinions
A. House Counsel Admission Rule - Request of the Supreme Court for
Mr. Riemer suggested that the board’s Reciprocity Rule Implementation Committee (Mr. Carter and Mr. Hytowitz) consider the court’s questions, along with the appointed representative from the Board of Bar Examiners. The board approved this recommendation by consensus without a formal vote. The committee’s recommendations will be brought back to the board in due course.
3. Special Issue
A. Election of 2001-2002 Officers
Following presentations by Mr. Hytowitz and Mr. Williamson, the board voted for the position of President-Elect – 2002. Mr. Harnden announced that Mr. Williamson was elected as President-Elect for 2002.
Ballot count by candidate: Mr. Williamson – 11( Harnden, Bryant, Carter, Lopez, McCauley Burrows, Davis, Sowle, LeSage, Williamson, Scott, and Worcester). Mr. Hytowitz – 5 (Hytowitz, Anderson, Brown, Tyner, and Rinehart.)
By operation of the bar’s bylaws and BOG Policy 5.202(B) Mr. Lopez, formerly the President-Elect, becomes President for 2002 and Mr. Tyner and Ms. Rinehart become Vice-Presidents for 2002.
4. OSB Committees, Sections, Councils, Divisions and Task Forces
A. Client Security Fund
1. Witzel v Harris
Action: After a brief presentation of this claim by Mr. Scott, Mr. Scott moved and Mr. Anderson seconded, that the board approve the claim of $2000. The board thereupon unanimously approved the claim in that amount.
5. BOG Committees, Special Committees, Task Forces and Study Groups
1. Approval of Committee Charges for 2002
Action: The committee moved that the OSB Committee charges for 2002 be approved by the board. The board unanimously approved the charges.
2. Disciplinary Rule Change Process
The committee recommended that no change be made in the process used by the bar and Supreme Court to promulgate and approve changes in the Oregon Code of Professional Responsibility. No motion was made to change the process and it will remain as is.
1. 2002 Budget
Mr. Scott presented the Budget and Finance Committee’s proposed OSB Budget for 2002 as outlined in the agenda material starting at page 48.
Action: The committee moved that the board approve the 2002 Budget; the board, thereupon, unanimously approved the 2002 Budget.
2. Update on Directors’ and Officers’ Insurance
Mr. Scott reported that the Budget and Finance Committee voted to take no further action on the issue of Directors and Officers Insurance for the Oregon State Bar at this time.
3. Board Reimbursements
Action: The Budget & Finance Committee moved that the bar waive future OSB Convention fees for BOG members inclusive of the public members. The board unanimously approved the committee motion.
Action: The Budget & Finance Committee moved that the per diem rate for in-state expenses follow the federal per diem rates. This would apply only when there is no receipt available. The per diem would be $8 for breakfast, $8 for lunch, $20 for dinner and $2 for incidentals, which would bring the total per diem to $38. The board unanimously approved the committee motion.
Action: The Budget & Finance Committee moved that the per diem rate for out-of-state expenses follow the federal rates. This would apply only when there is no receipt available. The per diem would be $9 for breakfast, $11 for lunch, $24 for dinner and $2 for incidentals, which would bring the total per diem to $46. The board unanimously approved the committee motion.
Action: The Budget & Finance Committee moved that the per diem rate for rooms be $125 plus tax. If the rate is not available in the area, a reasonable rate for the area will be paid with a receipt. The board unanimously approved the committee motion.
Action: The Budget & Finance Committee motion to have the food and mileage rates track the federal rates was unanimously approved.
Action: The board discussed the issue of rooms, which were not used, but for which the bar was charged because the reservations were not canceled. It was decided by consensus that the board members would be on the 'honor system' and would cancel their own reservation when they would be unable to attend an event.
To prevent non-reimbursement of room charges, the Executive Assistant will advise board members of which days will be reimbursed.
It was proposed that this be the practice for six months and if the results are satisfactory, no action will be taken. The board approved this process by consensus, without a formal vote.
C. Awards Committee
Mr. Hytowitz presented information concerning a request from Dave Frohnmeyer, President of the University of Oregon, that the OSB submit a nominee to the university for their Distinguished Service Award.
Action: The Awards Committee moved that the board approve Vernon Gleaves to the University of Oregon as a nominee for the university’s Distinguished Service Award. The committee motion was passed unanimously.
1. Executive Session Pursuant to ORS 192.660(1)(i)- Executive Director
The board held an executive session to discuss the executive director’s performance under established performance criteria. Following the executive session, the board returned to its public meeting.
2. Adoption of Executive Director Evaluation and Compensation
The board completed its annual evaluation of the Executive Director in closed session and in open session voted to extend her contract for two years (January 1, 2002 – December 31, 2004).
6. Professional Liability Fund
Mr. Zarov briefly discussed how the fund is administered; gave an update on the PLF open house, which will be held December 6, 2001 from 2:00 p.m. – 4:00 p.m.; informed the board of the positive nature and results of the Attorney Assistance Program; and discussed the upcoming joint meeting of the PLF and the BOG, scheduled for December 6, 2001, in which he will discuss PLF actuary issues.
A. Adoption of the PLF 2002 Budget
Mr. Nunn and Mr. Zarov presented the PLF’s proposed 2002 Budget. Mr. Williamson asked about the difference in the salary pools between the PLF and OSB staffs. Ms. Garst indicated that she had discussed the difference with Mr. Zarov and that the extra 3% was to allow the PLF to catch up in reclassifying appropriate positions within the OSB/PLF job classification structure in 2002. The bar staff has reclassified positions as appropriate on an ongoing basis. This was intended to be a one-time only addition to the PLF staff salary pool.
Action: Mr. Williamson moved, Ms. Burrows seconded, that the board approve the PLF’s 2002 budget. The motion passed unanimously.
B. Approval of Amendment to PLF Policy 6.200
Mr. Zarov presented the amendment of PLF Policy 6.200, which added the words 'mental health issues' to this policy.
Action: Mr. Williamson moved and Ms. Rinehart seconded that the board approve this proposed amendment. The motion passed unanimously.
C. Report on Reciprocity
Mr. Zarov indicated that the PLF was working on a form for use by reciprocity admittees to indicate their claim of exemption from PLF coverage or the existence of comparable malpractice coverage, as required by the new reciprocity rule. He anticipated that the form would be available in early 2002. Mr. Riemer indicated that this would work just fine as the new rule does not go into effect until January 1, 2002 and it will take applicants several months, at the minimum, to actually be admitted to practice in Oregon.
D. Adoption of Coverage Plan Changes
1. Action Memo No. 2001-01
Mr. Zarov explained the proposed amendment to exclusion j. of the PLF coverage plan to clarify that claims associated with the alleged negligence of a covered party in failing to obtain an attorney’s fee award under a fee shifting statute are not excluded from coverage under the plan.
2. Action Memo No. 2001-02
Mr. Zarov explained the proposed amendment to Section III 3. of the PLF coverage plan. The amendment proposed to add the words 'special representative pursuant to ORS 128.179' to this provision. Subject to various conditions, covered parties would have PLF coverage for services rendered in this capacity.
3. Action Memo No. 2001-03
Mr. Zarov explained the proposed amendment of the business entity exclusion in the PLF excess coverage plan. The proposed deletion of language would clarify that coverage would be provided for work done by one partner in a firm on behalf of a client in whom an ownership interest or director position is held by a partner in the firm, subject to the stated limitations in the exclusion.
Action: Mr. Hytowitz moved and Ms. Rinehart seconded that the board approve the proposed changes. The motion passed unanimously.
E. PLF Response to Current Political Crisis/Rules Adjustments
Mr. Zarov indicated that the PLF Board has approved the following addition to the PLF Policy Manual and now seeks the board’s approval of this addition:
'The PLF CEO has the authority to take reasonable and necessary actions, including extending deadlines and suspending late fees, if national or statewide events occur that severely disrupt the normal course of business.'
Action: Mr. Williamson moved and Ms. LeSage seconded that the board approve the proposed change. The motion passed unanimously.
F. PLF Policy 5.200(G) Investment Guidelines
Mr. Zarov presented the proposed amendment of PLF Policy 5.200(G) dealing with the range of the percentage of PLF assets that can be invested in domestic and international equities and fixed income obligations.
Action: Mr. Hytowitz moved and Mr. Williamson seconded that the board approve the proposed change. The motion passed unanimously.
7. Consent Agenda
Action: Ms. Rinehart asked that Mr. Lawrence Mann’s name be removed from the list of appointments to committees on Consent Agenda. Ms. Sowle moved and Ms. Rinehart seconded that the board approve the appointments set forth in the committee recommendations excluding Mr. Mann and including the supplemental list, which was distributed to the board members. The motion carried unanimously.
8. Default Agenda
Inform only, no action taken.
9. Good of the Order (Non-action comments, information and notice of need for possible future board action)