Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2002
| Oregon Legal Heritage |
GROWING PAINS
Recollections of the 1977 OSB specialization controversy
By John D. Ryan
Sept. 29, 1977 was the date of the Oregon State Bar Annual Meeting at Seaside, Ore. It was still a time when the business meetings of the state bar were of the town hall type — resolutions and reports being made to the assembled lawyers at their annual bar convention for their acceptance or rejection.
The minutes of the 1977 meeting indicate that the bar membership at that time had risen to about 5,000, and that of that number about half had entered the Oregon State Bar in the previous five years. All told, things were surely changing, and in 1977 the bar was feeling its growing pains.
Some time in the spring or summer of 1977 I attended a meeting at the Congress Hotel in Portland. (As an aside, this hotel was a favorite watering hole for downtown Portlanders, just a short walk from the Multnomah County Courthouse. It was torn down in the skyscraper mania of the ’80s.) This meeting was chaired by Owen Panner of Bend, one of the foremost lawyers of central and eastern Oregon.
Panner and others showed an American Bar Association documentary film on 'specialization' to an audience of Portland lawyers. I have a memory of chatting with Owen after the meeting and telling him it was a most persuasive presentation.
This was not my first encounter with the subject. In 1962, Jim Goodwin of Oregon City and I were members of the Board of Governors, and we proposed the establishment of a committee, with many subcommittees, to be known as The Committee on the Future of the Legal Profession. One of the subjects to be studied by this committee was 'specialization.' The idea of certified lawyers was weighed and rejected by this committee, but by 1977 it was resurrected as an antidote for potential abuses in lawyer advertising.
Lawyer advertising had become legal by reason of a recent United States Supreme Court decision which had authorized advertising with only a few, vague provisos against abuse by false claims to competence. This was new territory to a bar which had always busied itself with the pursuit of 'ambulance chasers,' but had little concern with the cajolery of corporate and insurance company clients by the more sedate brethren in the bar at private clubs, hotels and elsewhere. Would the public be victimized by misleading, misinforming advertising? How to provide for the public need to know, with the inherent risk of advertising?
This was a new world far from the age-old concern of the bar in matters vaguely related to the ancient rules against champerty, barrarty and maintenance. These common law prohibitions against maintaining or seeking out litigation or acquiring it by assignment in certain cases had been the basis for the many statutory and other rules against advertising and soliciting.
It was about this same time that Chief Justice Warren Burger of the U.S. Supreme Court made numerous press and other public statements downgrading the practicing bar, charging the lawyers of the United States with endemic incompetence. He also had just published a thin book revealing his bewitchment by the wig and gown culture of the English barristers and admiring the disappearance of the civil jury trial in the United Kingdom. Needless to say, my sensibilities were ruffled by this freely- given downgrading of my profession. I did not take it lightly.
This was an atmosphere which makes legitimate the concerns of the organized bar, the ABA and the OSB: that lawyer advertising would make the public victims of deceit by the reckless pretensions of some of the advertisers.
When a committee is given a problem to solve, it is almost too much for one to ask that it come back with no solution if a good solution is not available. Rather than leaving the conduct of advertisers to be subject to bar discipline, stopping egregious violations of bar ethics, certification by specialization ended up as the solution adopted by the ABA. It was my strongly felt opinion that this shouldn’t happen in Oregon. Others, whom I respect, thought otherwise. This difference of opinion brought me to a reluctant opposition to the proposal to enact 'specialization by certification' as bar policy and to be part of the dramatic debate that took place in Seaside in September 1977.
The resolution of the Committee on Specialization, unanimously approved by the Oregon State Board of Bar Governors, provided for a plan whereby various sections representing areas of practice would establish a certification of specialization methods and be empowered to endow certain practitioners with the right to publicly claim to be a certified specialist in a given field.
This was the crux of the resolution. The committee had worked long and hard on the matter. Hard work had been done by Owen Panner, Gary McMurray, Ron Summers and others to do the missionary work throughout the state to assure the passage of certification by specialization at the 1977 convention. The Board of Governors had given 100 percent approval to the Panner resolution and had already treated its passage as a fait accompli; printing books, etc., to aid in its implementation.
I reached the conclusion after much thought that the whole idea of certification of specialists as proposed was unworkable. No matter if problems with advertising incompetence remained, giving the power to certify to sections would end up by creating an expensive (and possibly extensive) bureaucracy empowered to interfere with the lawyers’ freedom to practice. In a speech I gave supporting a resolution at the convention against specialization, I argued that the specialization committee could not, '. . .with an adz and axe and a chisel . . .' create categories of specialists.
The Oregon Revised Statutes provide for the qualifications of lawyers. Their education generally does not involve additional years after the attainment of the LLB for specialized training and qualification such as are found in the medical profession.
I drew a resolution to counter the Board of Governors’ recommended proposed specialization by certification. It favored the use of the sections as a source of continuing legal education but denied to them the power to certify.
My friend Keith Burns, who shared office space with me, helped me in drafting it. To be sure copies of it were available before the scheduled day which was a Thursday, I asked Keith to take a number of printed copies for distribution to the meeting the night before since I could not be in Seaside until late that Wednesday night.
On Thursday morning, before the resolution was to be argued, I was interviewed by two reporters, one from The Oregonian, and the other from The Oregon Journal. Both asked me how I could hope to reverse the obvious certainty of the passage of the Bar’s resolution with its eminent proponents. I brazenly said, 'Just wait and see what happens.' I secretly understood their opinion that mine was an impossible task, but 'in for a nickel, in for a dollar' as the old saying goes.
To help me in speaking for the resolution I was presenting, I had asked John Jaqua, Kenneth Roberts, and Frank Pozzi to speak in support of my substituted resolution, if they believed it the right thing to do.
Owen Panner rose to submit the Specialization Committee resolution, but after some preliminary parliamentary skirmishing, Chairman Carl Neil let me move the adoption of the resolution I had proposed and to speak in its favor.
I alluded to the fact that the proponents of the committee’s resolution were not sure of how certification would be accomplished, but that the qualifications to practice and to be licensed contained no mode of certification; that if certification were permitted it would be a restriction on the free use of the right to practice earned by our education and passing the bar examination.
Checking the transcription, some phrases from my speech in favor of the resolution I had submitted give the flavor of my impassioned (or unrestrained) argument. Alluding to Chief Justice Burger and other professional apologists in publicly downgrading practicing lawyers, I said, 'I want us to give the public darn good service. Any time you let somebody out of the front office of the bar, and I don’t care who it is, to be the chief justice or judge or member of the board of governors, the first thing that happens is when they take the Queen’s shilling, they turn around and fire on their own troops.'
I think that made an appeal to the audience for their own self-respect as practicing lawyers. The lawyers in the audience treated this with boisterous applause and cheers. I closed by saying, 'We are embarking on a voyage into the professional unknown. Ask yourself, do you trust the navigators?'
While that last sentence was rhetorically strong, I truly didn’t mean it to be a personal condemnation of those proposing the certification by specialization program, but all of my doubts about bureaucratic power and the distance committees and bureaus have from the practicing lawyers historically was the grounds for my suspicions.
My emotional talk was fortified by the sound arguments of John Jaqua, Kenneth Roberts and Frank Pozzi. When the resolution went to a vote, the results in favor of the resolution forbidding specialization by certification were announced by Chairman Neil, as 'those in favor of John Ryan’s resolution — the ayes are 410, the no’s are 266.'
As events would have it, this decision against certification had the further effect of defeating resurrected attempts to revive certification in 1987, by a committee appointed 10 years later. I submitted the minority report as the sole dissenting member of this committee to a recommendation that there be certification of specialists. This time the board avoided public debate by calling for a mail-in ballot, but the results were the same. The bar, by a heavy majority, refused to accept the idea of certification.
In retrospect, in my opinion these results were right, because: 1) no educational facilities were in place to give graduate study in specialization; 2) there are too many cross-overs in the law to narrow the study and the practice to one field only; 3) a greater bureaucracy and the centering of power in bar committees in a continuing bureaucracy is often maintained by non-lawyers with a career investment in perpetuation; 4) in conclusion, in a free world, who wants to be hobbled?
The problem of advertising, which was the cause of it all, truly has changed parts of the practice, particularly the personal injury plaintiff’s bar. This is also my chance to say to Judge Owen Panner, Gary McMurry, Ronald Somers, Morton Winkel, Joe D. Bailey of Hillsboro, Jack Gardner of Eugene, Ron Gevurtz of Portland and others I am sure , including George Hibbard and James Larpenteur, who were some of the members of the committee responsible for the specialization resolution: In my opinion they worked hard to do right, and if I upset their apple cart it was without rancor, and I feel as to all of them that we are still friends. That was one of the wonderful characteristics of practicing law in 1977.
ABOUT THE AUTHOR
John Ryan, a semi-retired Portland trial lawyer and active OSB member,
is a published poet and the author of 'Cooking with John Ryan,'
recently published.
© 2002 John D. Ryan