Oregon State Bar Bulletin — JULY 2003

Bar Counsel
Supreme court approves changes to Bar Rules of Procedure

Supreme court approves changes to Bar Rules of Procedure
The Oregon Supreme Court approved several changes to the bar’s Rules of Procedure on June 3, 2003. The changes were recommended by the Board of Governors and implement concepts approved by the House of Delegates at its annual meeting in October 2002.

Information on previous rule changes approved by the Oregon Supreme Court and the text of all changes recommended by the House of Delegates.

Client Assistance Office (CAO)
Beginning Aug. 1, 2003, all inquiries and complaints about members of the Oregon State Bar will first be screened by a new client assistance office led by Chris Mullmann, formerly with disciplinary counsel’s office and now in the general counsel’s office. Mullmann will be joined by two other members of the disciplinary counsel’s office (Scott Morrill, assistant disciplinary counsel, and Karen Graham, discipline intake coordinator) as the initial staff of this new program.

The CAO will determine by way of preliminary review and investigation whether a matter raises an actual complaint of misconduct. An actual complaint of misconduct arises when the CAO staff determines that there is credible evidence to support an allegation that misconduct has occurred. If such a determination is made, the matter will be referred to disciplinary counsel for further investigation and will, upon transfer, be recorded as a disciplinary complaint. If a matter is determined not to raise an actual complaint of misconduct, the CAO will retain the matter and attempt to resolve the concerns raised by the person making the inquiry or complaint, to the extent possible and as bar resources permit. A decision by the CAO that an inquiry or complaint does not raise an actual complaint of misconduct may be appealed to the OSB general counsel. The general counsel’s decision is final.

The purpose of this new program is essentially two-fold. First, inquiries and complaints will be screened by CAO, so that only matters presenting credible evidence of misconduct will be recorded in bar records as disciplinary complaints and investigated further by disciplinary counsel. Second, the bar will endeavor to assist clients with problems that may not raise actual ethics issues, but which still should be addressed from the standpoint of customer service. This new program will be evaluated by the Board of Governors over time to ensure it is properly screening matters and providing useful assistance. However, because of the public records law, all inquiries and complaints screened by the CAO will be matters of public record.

Also beginning Aug. 1, the State Professional Responsibility Board (SPRB) will have the ability to enter into diversion agreements with lawyers who have engaged in minor misconduct. The misconduct cannot involve the misappropriation of funds or property, fraud, dishonesty, deceit or misrepresentation, or the commission of a misdemeanor involving moral turpitude or a felony under Oregon law. The misconduct must be the result of inadequate office management, chemical dependency, a physical or mental health condition, negligence or a lack of training, education or similar circumstances. Also, it must appear that there is a reasonable likelihood that the successful completion of a remedial program will prevent the recurrence of similar conduct by the lawyer.

The SPRB is not required to offer diversion to a lawyer. If diversion is offered, the SPRB and the lawyer must agree on the terms and duration of the remedial program. The maximum term of a diversion agreement is 24 months. Lawyers must bear the costs of any remedial program agreed to under a diversion agreement. If a lawyer fulfills the terms of his or her diversion agreement, disciplinary counsel will dismiss the complaint.

The principal purpose of this new program is to offer opportunities to lawyers to correct the underlying cause of a complaint or complaints. If the underlying cause is addressed and corrected, the lawyer should be able to get his or her practice back on track without the need for formal discipline.

State Professional Responsibility Board Discretion to Dismiss Complaints

Finally, the Oregon Supreme Court approved a new rule, to be effect Aug. 1, granting the State Professional Responsibility Board the authority to dismiss complaints in certain, prescribed circumstances. In the nature of a 'no harm, no foul' provision, the new rule provides as follows:

Notwithstanding a determination by the SPRB that probable cause exists to believe misconduct has occurred, the SPRB shall have the discretion to dismiss a complaint or allegation of misconduct if the SPRB, considering the facts and circumstances as a whole, determines that dismissal would further the interests of justice and would not be harmful to the interests of clients or the public. Factors that the SPRB may take into account in exercising its discretion under this rule include, but are not limited to: the attorney’s mental state; whether the misconduct is an isolated event or part of a pattern of misconduct; the potential or actual injury caused by the attorney’s misconduct; whether the attorney fully cooperated in the investigation of the misconduct; and whether the attorney previously was admonished or disciplined for misconduct. Misconduct that adversely reflects on the attorney’s honesty, trustworthiness or fitness to practice law shall not be subject to dismissal under this rule.

The new CAO rules go into effect Aug. 1, 2003. The new diversion and SPRB discretion rules go into effect the date the court’s order is signed.