Oregon State Bar Bulletin — MAY 2002

Bar Counsel
Discipline Task Force:
What is it? What has it been doing? What will happen to its report?
By George A. Riemer

The Oregon State Bar House of Delegates passed a resolution at its meeting in September 2001 directing the Board of Governors to establish and supervise a comprehensive study of the Oregon State Bar disciplinary system. The purpose of this column is to explain what the Board of Governors has done to implement this charge.

The resolution directed the Board of Governors to establish and supervise a complete study of the state bar disciplinary system, to report at the 2002 House of Delegates meeting on the results of the study and to make recommendations to the House of Delegates at that meeting on changes it believes should be made to present disciplinary statutes, rules and processes. The resolution directed that the study provide for input from the OSB membership and other interested groups within each region of the bar and, if possible, with the assistance of local bar associations.

The resolution also directed that the study be broad in scope, but include the review of nine areas. Those areas included the specific purposes and goals of the disciplinary process, the appropriate speed of the process, the process of setting enforcement priorities, the appropriate use of volunteers or paid staff, and appropriate met methods for the bar to develop and debate ethics rules, and educate lawyers on those rules, other than the current adversarial case law system of resolving ethics complaints.

In October 2001, then OSB President Ed Harnden appointed a group to carry out the study called for by the resolution. The members of the Disciplinary System Task Force are Dennis Karnopp, chair (Bend), Brad Berry (McMinnville), Marc Blackman (Portland), Court of Appeals Judge David Brewer (Salem), Win Calkins (Eugene), Tom Christ (Portland), Kelly Doyle (Portland), Linda Eyerman (Portland), Mary Mertens James (Salem) and Judy Uherbelau (Ashland). Bette Worcester, a public member of the Board of Governors, is the board's liaison to the group. The task force has held five meeting through April 12, 2002.

The task force has asked bar staff to compile information about the disposition of ethics complaints for the period 1996 to 2001. The task force has sought out information on the use of alternative dispute resolution procedures by other state bars. Bar staff has also compiled information on ethics advice services provided by other bars and whether other jurisdictions offer lawyers a defense or mitigation of sanction for reliance on that advice. The bar asked for input on the disciplinary system by e-mail, fax and letter from all members of the bar. The bar also asked members to response to a web-based survey, and almost 500 members responded. Task force members have also encouraged members to contact them directly and many members have done so.

Consistent with the direction given by the House of Delegates, a number of meetings have been held with local bar associations and other bar groups to obtain member input on the disciplinary system. Meetings have been or will be held with the Deschutes County Bar Association, Jackson County Bar Association, Lane County Bar Association, Marion County Bar Association, Gus Solomon Inn of Court and the Sixth Judicial District Bar Association (Pendleton).

The web-based survey generated some interesting perception data from those who responded. For example, almost 40 percent of respondents felt the disciplinary system was too slow. Almost 49 percent of respondents thought the bar should not keep as public records dismissed complaints. Sixty-five and one-half percent of respondents felt the bar should pursue alternative dispute resolution procedures to resolve minor complaints. Nearly sixty percent (59.2) of respondents felt that the bar should establish an ombudsman-type program to help lawyers and clients resolve disagreements separate and apart from the discipline process. Even more respondents (73.5 percent) felt the bar should enact a rule that takes into account when disciplining a lawyer whether the lawyer relied on an ethics opinion provided by the bar. And 47.1 percent of respondents felt that there was bias in the disciplinary system though the reasons for that perception of bias vary considerably. Reasons for the perception of bias include the subject matter of a lawyer's practice, size of firm, geographic area, gender and ethnicity.

While the task force is still in the information gathering and discussion stages of its work, several topics have received the most discussion. They include: 1) delay at all stages of the disciplinary process; 2) getting rid of frivolous complaints as promptly as possible; 3) alternatives to discipline such as a diversion program which would offer options other than a disciplinary sanction to resolve a complaint; 4) an ombudsman program to assist lawyers and clients in resolving non-discipline customer service complaints and 5) a procedure to resolve questions involving the interpretation of disciplinary rules without putting any individual lawyer at risk of discipline

The task force is continuing to meet to discuss disciplinary system problem areas and possible solutions. Members are encouraged to provide their input and suggestions for improving the OSB disciplinary system. Letters can be sent to Dennis Karnopp, Disciplinary System Task Force Chair, Oregon State Bar, P.O. Box 1689, Lake Oswego, Ore. 97035. It is anticipated that the task force will prepare a report by no later than July 15, 2002. The Board of Governors will review the report thereafter, and the report and the recommendations of the task force and Board of Governors will be submitted to the OSB House of Delegates for further consideration and action at its meeting in Eugene in early October 2002.

What changes will be made to the OSB disciplinary system as a result of the present study? That's an open question at the time of this writing. The Disciplinary System Task Force is working diligently to gather information, obtain input from bar members and discuss a broad range of issues concerning the operation of the OSB disciplinary system. The task force report and action by the Board of Governors concerning it will be reported to be membership in the coming months.

The Bar Counsel column for the February/March 2002 issue of the Bulletin ('Tri-State Practice: Charting a course for ethical practice under the new reciprocity admission rule') contains an error under item 4. Item 4 stated as follows: 'Idaho and Washington Rule 1.8(d) prohibit a lawyer from making or negotiating an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to his or her representation of a client prior to the conclusion of that representation. Oregon does not have a comparable rule.'

In fact, Oregon does have a comparable rule. DR 5-104(B) provides, 'Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.'
Thanks to Chris Mullmann, assistant disciplinary counsel, for bringing this error to my attention and my apologies to the readers for this error.

The author is general counsel of the Oregon State Bar. He can be reached at (503) 620-0222 or (800) 452-8260 (in Oregon), ext. 405, or at griemer@osbar.org.

© 2002 George A. Riemer

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