Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2004


Rethinking Discipline
I have been a member of the Oregon State Bar for about 25 years and always look forward to reading the monthly bar Bulletin, even though I no longer actively practice in the state. The one portion of the Bulletin that has always disturbed me, however, is the disciplinary section. It has always struck me as offensive that those members who have broken bar rules, or made other mistakes, not only face punishment by the bar but also have to face the public humiliation and embarrassment of having their names and offenses reported in this widely read magazine. I am sure that this publicity is devastating to their careers, as well as personally very hurtful.

It seems to me that publishing the names and offenses of fellow bar members, no matter the severity of their offense, is both unduly harsh and reflects badly upon all of us. Is it really much different from the colonial practice of putting law breakers in public stocks or tarring and feathering offenders? In a civilized society, and particularly one dedicated to the rule of law, do we really need to use humiliation as a tool to punish and deter? I know that old customs die hard, but I think it is time that this publication and our bar association should start treating all of its members with more dignity and compassion.

When I saw the disciplinary section in this month’s Bulletin, I was reminded of the scene from the popular movie Master and Commander, where the young ensign has just committed suicide by jumping overboard and the captain questions his own role in the tragedy by noting his failure to provide fellowship. Likewise, when we publicly humiliate our fellow members have we not also committed a failure of fellowship?

Although I, along with most members, understand and appreciate the need for vigorous enforcement of the bar’s ethical and other rules, public humiliation should not be part of that punishment. We are better than this.

Carol A. Smoots
Washington, D.C.

Editor’s note: The Bulletin welcomes feedback on this topic. Readers, please weigh in.

Ode to a Lawyer
Please accept my appreciation and convey my thanks to Steven T. Wax for his well wrought Parting Thoughts column in the latest Bulletin (July 2004). Although not intended to be one, the piece is like a poem for lawyers, to read about themselves.

The work lawyers do is often as important as the work Gandhi did, who was also a lawyer.

The same kind as Wax.

Steven Nemirow

Gently Into the Night
I was put off by the Discipline report in the July 2004 Bulletin wherein the Oregon Supreme Court accepted the Form B resignation of Neil E. Goldschmidt when disciplinary investigations were pending involving his prior felonious conduct. See OSB Rules of Procedure Title 9 — Resignation. Form B resignation is for the court a two-step process: 1) whether to accept or reject the resignation; and, 2) whether to allow the OSB discipline investigation to proceed or not. I assume justices who were former Goldschmidt appointees, such as Justice Michael Gillette to the Court of Appeals, recused themselves from participation.

The Supreme Court was not required to accept this resignation. A pending OSB disciplinary investigation automatically terminates upon the supreme court's acceptance of the Form B unless the court otherwise orders. I've found no indication that the court ordered the investigation to proceed. In short, Goldschmidt is permitted to move on, absent further OSB and public scrutiny, with a supreme court assist. Left unanswered are concerns of substantial public importance. What facets did his course of conduct involve? Grooming? Coercion? Intimidation! Use of public office and resources? Any gifts used to assure silence and submission?

Neil fooled many people along his journey towards personal fame and fortune, including President Jimmy Carter, the FBI, Gov. Kulongoski and OSB membership regarding his co-founded 'Campaign for Equal Justice' (a dark irony). Goldschmidt's Form B resignation is only a 'minor blip on his radar scope,' as he was already OSB inactive for an undisclosed number of years.

The case of In Re Deming 102 Wn.2d 82 (1987) is instructive. The district court judge committed no felonies but did openly sexually harass females within his courtroom and chambers. Even though he resigned his judicial position during the discipline process the Washington Supreme Court decided the case de novo and formally removed the judge 'because of [issues of] substantial public importance.' Deming found no refuge in resignation as has Goldschmidt.

The Oregon Supreme Court has set a questionable precedent. Goldschmidt was able to suppress his crime victim for decades while promoting himself and his legal/political career primarily in the eyes of a trusting public. Goldschmidt duped and outmaneuvered many people over the decades. And now the Oregon Supreme Court as well?

George Stevenson

Good Public Policy
Constitutional law, not emotion, should apply to analysis of Measure 36, the Defense of Marriage initiative on the November 2004 ballot.

About 38 states have statutory and constitutional provisions defining marriage as a union of a man and a woman. Oregon and about 10 other states will vote on the issue in 2004.

Murphy v. Ramsey, 114 U.S. 15, 45 (1885) defines marriage as "the union for life of one man and one woman."

The Federal Defense of Marriage Act, 1 U.S.C. § 7, and 28 U.S. 1738C provides that no state, etc., is required to recognize an out-of-state, etc. same sex marriage. Section 3 of the Act defines marriage as "only a legal union between one man and one woman as husband and wife." The U.S. government does not recognize same-sex marriage with respect to federal law.

Missouri voters this August approved 71-29 percent a defense of marriage constitutional amendment.

With three exceptions, numerous state appellate court decisions uphold marriage as a union between a man and a woman, and reject same-sex marriage claims. Goodrich v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003); Baker v. Carr, 744 A2d 864 (Vt. 1999) (The Vermont Legislature apparently satisfied the court by approving civil unions); and Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), reversed by Hawaii constitutional amendment.

ORS 106.010 defines marriage as follows:

Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable and solemnized in accordance with ORS 106.150.

Same-sex advocates must overcome the presumption that ORS 106.010 is constitutional and has a rational basis.

Measure 36 is as constitutional as ORS 106.020, which prohibits bigamous and first-cousin and closer marriages.

There is a distinction between man-woman marriage and same-sex marriage. A man and a woman can procreate with each other to create a child; a same-sex couple cannot do so with each other.

Recognizing that distinction is constitutional and good public policy.

Henry Kane

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