Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2011

From the President
Making Change(s):
An Update on OSB Programs
By Steve Piucci

One of the privileges of the office of OSB president is that you can have space in the bar Bulletin whenever you want to speak directly to the members. One of the attendant obligations is not to use that space just to hear yourself talk. I’m taking space now because I have a fair number of important updates to share, which increases the odds that I’ll have something of interest to say to each of you.

Last year’s bar president, Kathy Evans of Salem, published two of these columns. Her final words in the November 2010 Bulletin were: “Don’t screw it up.” The “don’t screw up” part was clearly directed at me, and her meaning was pretty obvious. The “it” she referred to was the board’s commitment to ensuring the bar’s resources are directed to our core functions and mission. For the past two years the board has been reviewing all of our programs, essentially engaging in a cost/benefit analysis to determine what should be expanded, modified or eliminated. As a guiding principle we are looking for maximum impact at minimum expense. It is a lot easier said than done, but I am proud of the work we have done so far.

Expanded Services
Our biggest expansion took effect Jan. 1, so I hope you already know about it: Every active bar member now has round-the-clock access to the BarBooks library as a member benefit. We dropped the long-argued-over subscription models for BarBooks because the titles it contains were written by Oregon lawyers for Oregon lawyers for the purpose of promoting lawyer competence and elevating law practice in our state. The board decided that something so central to our mission should be readily available to all members, including and perhaps especially those least able to afford BarBooks subscriptions. Together with Fastcase, we have given every OSB member a well-rounded package of basic tools for competent legal research.

In the 30-day period before I submitted this update, nearly 2,500 different bar members accessed BarBooks. I think those numbers demonstrate the broad appeal and impact of our decision. Moving forward, we are developing a wiki-like platform that will use the volunteer efforts of an expanded group of members to make the library more up-to-date and user-friendly.

Another expansion of services that squarely addresses lawyer competence and the quality of law practice in Oregon is our New Lawyer Mentoring Program. The mentoring program, now mandatory for newly admitted lawyers, combines several required and elective elements focused on the attributes of highly competent, ethical and professional lawyers. Loosely modeled after successful programs in Utah and Georgia, the Oregon program emphasizes a flexible approach to best meet the needs of its newest members. For many of us, our warmest memories of starting out revolve around the senior members of the bar who embraced us, made us feel welcome and modeled the professionalism, competence and collegiality that have become hallmarks of our own approach to practicing law. We hope that by assuring that every new lawyer gets the value of that kind of guidance, Oregon will continue to be among the most rewarding places in the country to practice our chosen profession. If you want more information (and I hope you do) please visit our webpage and see the video presentation at www.osbar.org/programs/mentoring.

Eliminated and Reduced Services
When we committed to the BarBooks changes we knew there would be trade-offs. The old subscription model brought in a lot of revenue, and letting that go meant we would need to make up the difference elsewhere or immediately raise general membership fees. We quickly decided the latter was not an option and set to work on the former. Last year the board discontinued our Leadership College, consolidated staffing in some areas to reduce overall FTE, reduced travel expenses (especially board member travel) and eliminated many printing and postage items. The most difficult and controversial of these decisions was elimination of the traditional print membership directory. We knew that many of you love your print directories and would not like the change, and we were right — we have seen your letters and emails. Others applauded the decision for the same reasons we made it: concern for accuracy, sustainability and financial responsibility. We are continuing our sometimes bumpy path toward primarily electronic communications while attempting to be sensitive to differing member preferences, generational and otherwise. Again, you can find out more about communications and print directory options on the bar’s website.

Big Changes on the Horizon for the Lawyer Referral Service
The most complicated and difficult issue the board has taken on this year is how to fund our Lawyer Referral Service. Although the service collects registration fees from lawyer panelists, the program has been subsidized by the bar’s general membership every year since its inception in the 1970s. The program’s average annual shortfall runs about $275,000. The current model is not financially sustainable. We considered raising panelist registration fees but concluded that option was both inequitable and unlikely to move the program far enough towards financial self-sufficiency. The option the board did vote to pursue — after more than a year of analysis, discussion and lively debate — is a percentage fee model.

A percentage fee system is one in which a panelist who accepts a fee-generating case returns a portion of the fees collected to the referral service. Percentage fee systems in effect spread program costs proportionately, with greater contributions from those panelists who most benefit from their participation. In addition to generating revenue, the main other advantage of a percentage-fee system is that only those who choose to participate and benefit financially as a result will pay anything beyond the basic registration fees.

This option offers the potential to make the referral service self-supporting while also funding needed program improvements. You might not know this, but the vast majority of state and local bars with a lawyer referral service have adopted the percentage fee model — some more than 20 years ago — and none have reverted back to a registration fee-only model. In fact, a panel of ABA consultants first recommended percentage fees for the OSB program as far back as 1992. The concept therefore has been discussed many times over the years by various boards. Our current exploration began in earnest last year.

Again, this was not an easy decision for the board to make. We discussed many issues and concerns, received advice from bar committees including the Public Service Advisory Committee and Legal Ethics Committee, and hosted two visits from ABA consultants. You can see much of what we discussed by looking at the board minutes on our website, especially a substantial background document included in the agenda materials for our May 20, 2011 meeting (just click on the date to open the agenda materials).

The board has set a target effective date of July 1, 2012. Implementation will be a process involving continued committee work and regular two-way communications with referral service panelists whose input will be crucial in shaping the program’s critical details. Specific issues to be decided include: billing procedures; determining appropriate percentages, including consideration of thresholds and/or caps; minimizing new administrative burdens on panelists; whether to consider education/experience requirements for certain panels; and a proposed timeline for implementation. We will also look at whether Oregon RPC 7.2(a) should be amended to clarify that it does not prohibit percentage fees to nonprofit referral programs. It bears pointing out that historically the OSB has been known as a national leader or an “early adopter” in launching new programs and approaches, i.e., our open discipline system, the OSB Professional Liability Fund and now our mandatory mentoring program. Coming later to the percentage fee model of lawyer referral services means we now have a wealth of examples to consider and follow as we develop our own program. We will reap the benefits of the very best practices from around the country as we go forward.

We are developing a special OSB Lawyer Referral Service web page to host background materials along with updates and questions for the general membership as we proceed. As always, you are welcome to contact me or any member of the Board of Governors with questions and comments, or you can send them to BOGreview@osbar.org. I may also take advantage of the president’s column opportunity in the Bulletin again before my term expires in December. If so, I’ll do my best to keep it brief.

Steve Piucci, a trial lawyer in Portland, is the 2011 president of the Oregon State Bar.

© 2011 Steve Piucci

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