Oregon State Bar Bulletin — DECEMBER 2008
Parting Thoughts
Breaking Barriers
By Karen Garst

Yes, it’s true. I am retiring on Dec. 31, 2008, after 13 years at the helm of the Oregon State Bar. In that time, I’ve come to know hundreds of highly intelligent, dedicated and hard-working of OSB members. They care deeply about the legal profession, access to justice and a fair and impartial judiciary. I will miss you. I will especially miss the involvement in issues that are at the core of our democracy.

I’ve been asked to comment on what I see on the horizon for the profession. When I started at the bar, I predicted that in 10 years, there would be a national bar exam. That should have occurred in 2006. Needless to say, it didn’t. It seemed antiquated that each time someone moved (or their spouse moved), they ended up taking yet another bar exam. Given the global economy we now live in, I’m surprised that the prediction fell way off the mark. But I’ll make it again. In 10 years, which would be 2018, there will be some form of national reciprocity between the states. A lawyer who passes the bar exam out of law school won’t be tortured again and won’t have to pay the expense again. Maybe he or she will need to earn some additional state CLE credits, but that’s all. Each state supreme court will remain clearly in charge of policing these new rules as well as enforcing the state’s adopted rules of professional conduct.

As we are breaking down barriers, I think we should also look at multi-disciplinary practice. While the OSB and the ABA shot this one down a few years back, I think it bears more scrutiny. An elder law firm making a social worker a partner to share in the profits isn’t that radical. Or a business firm with lobbyists here and in Washington, D.C. That doesn’t mean there will be publicly traded law firms, but we could open ourselves to some structural options that would allow law firms to adapt to changing needs. I hope the ABA might consider a narrowly crafted rule that would allow for some of these natural partnerships to better serve both the profession and the public.

The ABA has made several attempts to look toward the future of the legal profession. Unfortunately, none that I know of has gained any foothold. Stare decisis makes a great rear view mirror, but it’s not a good guide to the future. The OSB is completing a report on its September 13 Futures Conference, and you will hear more about it in next month’s issue. Predicting the future and adapting to meet future needs isn’t easy. A decade ago, the CPAs saw their bread and butter, tax preparation, being taken away by software. They created a year-long visioning process and developed new areas of focus. It can be done. Other businesses need to adapt rapidly. That is probably not as true for the legal profession. But the profession does face challenges in the upcoming decades that it might not be prepared to meet unless it plans for them.

I have often used the metaphor of the justice system as a castle. As it currently stands, there is a moat with a draw bridge that goes down sporadically for those of low-income and modest means. Some get across, but not many. Known to those with funds, there is a well-lighted and heated underground tunnel. If the justice system is the cornerstone of our democracy, that underground tunnel will make the castle fall down. The high cost of legal services is making legal services out of reach for even the middle class. I’m not sure what the answer is. The medical profession has a wide array of health care professionals from a certified nursing assistant to nurse practitioners and physicians’ assistants that operate at a lower level than a medical doctor, helping to reduce health care costs. The legal profession has been loath to embrace licensed legal technicians or an accelerated law school program (thus lowering the cost of a law school education). Something must give. Given the $750 billion bailout, help from Washington or Salem is highly unlikely. Donations or pro bono help can’t fill the gap.

As the costs of legal services rise, the need for them increases as our world gets more complex and the era of a hand-shake deal has virtually disappeared. Citizens will need more help in the future rather than less from the legal profession. Lawyers are best suited to tackle this conundrum before others, less qualified, do it for them. A solution imposed by a state legislature or Congress will always be less palatable than one that lawyers devise themselves.

It has been my pleasure and privilege to serve as your executive director. I wish you the best as you continue one of the oldest and most honored professions of all times.

Karen Garst is executive director of the Oregon State Bar.

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