Oregon State Bar Bulletin — FEBRUARY/MARCH 2007
Bar News

May 8 Filing deadline for OSB Board of Governors in regions 5 and 6
The Oregon State Bar is currently seeking candidates for the Board of Governors. There are three board positions open to active bar members, two in region 5 and one in region 6. The Board consists of 16 members, 12 active members and four public members. The election will be held Oct. 15, 2007. Board terms are for four years and begin on Jan. 1, 2008. Region 5 encompasses Multnomah County; Region 6 encompasses Clackamas, Marion, Polk and Yamhill counties.

The board has five regular meetings a year, on a Friday and the following Saturday morning. Nearly half of the meetings are in the Portland area and the remainder at locations around the state. The board committee meetings are held three to four weeks prior to regular board meetings in the Portland area.

Board of Governor members serve as liaisons to the Professional Liability Fund, bar sections and committees, and numerous other groups and activities. Minority attorneys and women are encouraged to run for a position on the board.

For more information or to print a copy of the candidates statement and nominating petition go to www.osbar.org and select Forms Library, or contact Danielle Edwards at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 426.

Discipline information available online
After much thought, discussion and input from members, the OSB Board of Governors voted in late 2005 to make bar members’ disciplinary information available to the public online. The bar has spent the last year developing this new feature, which will be integrated into the online membership directory. With this action the Oregon bar joins the majority of states that provide disciplinary information online as part of their obligation to the public.

Here are the key points
  • Only disciplinary sanctions will be displayed. This includes reprimands, suspensions, Form B resignations, involuntary inactivations and disbarments. The records page will not show dismissed complaints, diversions, NFAs, letters of admonition or administrative sanctions; however, information about these items will still be available to persons who inquire by phone or by another method.
  • Only those sanctions that have occurred since 1991 will be available online.
  • The disciplinary information page will be accessible from a link on each member’s directory listing.
  • The directory will also be expanded to include the following membership status categories: active, inactive, suspended, disbarred, resigned and deceased. Until now the directory has included only currently active and inactive members.

At the same time, the bar has developed a new record retention policy for all state bar records. The new policy, which has been approved by the Oregon Supreme Court, requires complaints against bar members for which no probable cause was found to be retained for 10 years rather than indefinitely.

If you have questions please contact Karen Garst at (503) 620-0222, ext. 312, or toll-free in Oregon, (800) 452-8260, ext. 312. You can also e-mail questions to disciplineonweb@osbar.org.

Carson, Deits to be honored by OWLs
Oregon Women Lawyers has announced the recipients of the 2007 Justice Betty Roberts and Judge Mercedes Deiz Awards.

Judge Mary Deits, former Chief Judge of the Oregon Court of Appeals, has been selected to receive the Justice Betty Roberts Award for the promotion of women in the law, and Justice Wallace P. Carson, Jr., former chief justice of the Oregon Supreme Court, will receive the Judge Mercedes Deiz Award for promotion of minorities in the law. The award recipients will be honored at the 15th Annual Awards Dinner on March 9 at the Governor Hotel in Portland.

Additional information about the event and the award recipients can be found at the OWLS website, www.oregonwomenlawyers.com or by calling (503) 595-7826.

Court of Appeals report now available
The Oregon Court of Appeals announces the issuance of the court’s 2006 Annual Report.

The report reviews the court’s work in 2006, including statistics on appeals filed and opinions issued. The court issued 420 written opinions in 2006, by far the most opinions released annually in the last five years.

"The Court of Appeals is committed to being as transparent as possible about how we perform our work," says Chief Judge David Brewer. "We also want to share our accomplishments and plans for the future. This report is intended to make the work and the people of the Court of Appeals more visible and accountable to the members of the bar and to the public."

The report also outlines several transitions that the court underwent in 2006, some completed and others ongoing. In particular, the report provides an overview of the court’s progress toward full implementation of a new automated Appellate Case Management System, a key component of the chief justice’s vision for an "electronic courthouse." The public access component of the Appellate Case Management System is now up and running, and design work for several additional components is well under way. In addition, the report describes several initiatives that the Court of Appeals is undertaking to analyze its work processes and to create meaningful measures of its performance.

Finally, the report provides updates on several successful programs that have been ongoing for a number of years. For example, under the leadership of Program Director Judy Henry, the court’s mediation program has one of the highest settlement rates for programs of its type. In 2007, the Appellate Settlement Conference Program will begin the first pilot program in the country to mediate selected termination of parental rights cases.

The complete report is available online at www.publications.ojd.state.or.us.

Construction Law Section announces 2007 free lunchtime CLE series
The OSB Construction Law Section is sponsoring a free lunchtime CLE series for 2007. The series will give the new construction law practitioner a "nuts and bolts" background on the important, basic issues and concepts at work within the field.

Each session will be held at Schwabe, Williamson & Wyatt, 1200 S.W. Fifth Ave. Portland. The sessions will start sharply at noon and are scheduled to last 50 minutes with 10 minutes for questions and answers. To reserve your seat for a particular session or the whole series, contact Diane Salt (503) 796-3744 or dsalt@schwabe.com. The section will apply for MCLE credit.

Here is the upcoming schedule:

April 4: "Construction Delay Claims," with Steve Pinnell, Pinnell Busch, Inc. Topics: Overview of delays, critical path schedule, and delay claims - to include the essential facts needed by an attorney when faced with a construction delay claim, for either the contractor or owner. Specific topics include: 1) summary of two surveys (extent of delays and their cause), 2) a brief summary of critical path scheduling (simply adding and subtracting), 3) scheduling specifications (two or three key clauses and reference to our master scheduling spec), 4) recordkeeping (a few key items to record), 5) key issues (who owns the float? and no damages for delay), and 6) scheduling claims (collapsed as-built, windows, and time impact analysis).

June 1: "Mold and Indoor Air Quality Issues In Construction," with Greg Baker, AMEC Earth & Environmental, Inc. Topics: Environmental due diligence during construction and demolition; regulated building materials, moisture and mold.

Aug. 3: "Construction Defect Claims," with Joe J. Johnson, president, Johnson Construction Consulting, Inc. Topics: methodology for evaluating water infiltration in buildings, building envelope evaluations, construction defect analysis and prevention, and expert witness services.

Section schedules pro bono training event
The Debtor-Creditor Section is hosting a free training for lawyers who are interesting in volunteering for their monthly bankruptcy pro bono clinic, Wednesday, March 7, 2:30-4:30 p.m., at the Standard Insurance Building (concourse level), 900 SW 5th Ave., Portland.

Sponsored by the section’s pro bono committee. To register, contact Lynn Lloyd at lynne.lloyd@lasoregon.org.

OWLs grants announced
Oregon Women Lawyers Foundation has awarded its annual grants to several organizations which advance the OWLs Foundation’s mission to promote greater access to the justice system for women and minorities. Volunteers of America (Multnomah County CourtCare), CASA for Children, Portland Women’s Crisis Line and St. Andrew Legal Clinic each received a significant grant from the foundation in 2006.

The foundation also awarded the Vernellia R. Randall Bar Exam Grant to two third-year law students who will take the Oregon bar exam in February. Anne Marie Clark, a Lewis & Clark Law School student, is the single parent of three children and has balanced law school with her significant parenting responsibilities. Samantha Copeland, a Willamette College of Law student, is also a single parent to an 8-year-old child.

"A motion by any other name would not smell as sweet"
By James W. Nass

Effective April 1, 2007, the Oregon Supreme Court and Court of Appeals will put some teeth into the new requirement that motions contain a descriptive title from a list of commonly used motion titles: As of that date noncomplying motions will be stricken. And that is no April Fool’s Day joke.

The Oregon appellate courts amended Oregon Rule of Appellate Procedure 7.10 to require that motions bear a descriptive title from a list of commonly used motion titles. ORAP amendments went into effect Jan. 1, 2007, but compliance has not been as good as the courts had hoped. Apparently not all practitioners have gotten the word that ORAP 7.10(1)(b)-(d) requires motions (and responses to motions) to have a proper title.

In the last couple of years, the Oregon Court of Appeals has been receiving over 20,000 motions per year. Approximately 14,000 of those motions are motions for extensions of time, approximately 5,900 are other motions handled primarily by administrative staff, and about 1,100 are substantive motions handled by
the court’s legal staff and the judges

The Oregon Judicial Information Network (OJIN), the Oregon state court system’s electronic case register system, served the appellate courts well as a case register for many years, but OJIN is not as useful for generating statistical reports. Proper management of the appellate courts, including its motions practice,
requires statistical reports.

In December 2006, the supreme court and court of appeals rolled out their new Appellate Case Management System (ACMS). A key feature of ACMS is its ability to "thread" together a motion, answer and the order disposing of the motion, and to generate useful statistical reports. However, the usefulness of ACMS as a management tool for motions depends on sound data entry at the front end by having an accurate description of the motion in the first instance.

To assist practitioners with the task of accurately describing motions in a way usable by ACMS, the appellate courts developed a list of titles for commonly filed motions. Actually, there are two such lists, one for motions for extension of time and one for all other motions. Those lists are found as appendices to ORAP 7.10.
The rule requires a practitioner to use one of the motion titles listed, if one of the titles accurately describes the motion. It also requires that a response to the motion use the same title as part of the title of the response.

If none of the titles accurately describes the motion being filed, ORAP 7.10 requires the motion to be titled "motion — other" followed by a short descriptive title of the author’s own choosing.

In July 2006, the ORAP Committee published notice in the Advance Sheets of their intent to recommend adoption of amendments to ORAP 7.10, and in December 2006, after the supreme court and court of appeals had adopted the recommended amendments, the rules as amended were published in the Advance Sheets. The Appellate Practice Section sponsored several continuing legal education presentations to publicize the 2007 ORAP amendments.

The appellate courts recognize that for every change of this magnitude, practitioners will experience a learning curve. Nevertheless, the supreme court and court of appeals have been disappointed with the level of compliance. So, effective April 1, 2007, the supreme court and court of appeals, on their own motion, will strike any motion or response filed if the court determines that the author of the motion or response has not made a reasonable effort to comply with the new requirements of ORAP 7.10 by including a title that accurately describes the motion and that is taken from the list of commonly used motion titles in the appendices to the rule. The party filing the motion or response will be given leave to refile a motion that complies with ORAP 7.10.

The supreme court and court of appeals also urge practitioners to use the "motion — other" title sparingly, because every motion bearing such a title becomes part of a data base for which meaningful statistical reports cannot be generated.

If you have any questions about the amendments to ORAP 7.10 (or other amendments to the Oregon Rules of Appellate Procedure), do not hesitate to contact the appellate courts’ record section staff at (503) 986-5555.

Jim Nass has served as appellate legal counsel for the Oregon Supreme Court and Court of Appeals for over 20 years. He can be contacted at (503) 986.5563 or at jim.nass@ojd.state.or.us.

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