Oregon State Bar Bulletin — JANUARY 2011

Obligatory CYA Letters?
Having recently concluded a case in which I was accused of legal malpractice, I wrote what I thought was a no brainer letter to the Professional Liability Fund confirming that Oregon hourly lawyers have no obligation to write (or charge for) “cover your ass” letters to clients, especially clients who already have advised that they are very concerned about the amount they are being charged. I was wrong. The Professional Liability Fund replied that although the writing of such a letter is not required to meet the applicable standard of care, it is “good practice.” Good God. Unbelievable.

I would advise any lawyer handling a plaintiff’s legal malpractice case where the nature of the clients’ expectations is an issue and where no “cover your ass” letter was written to include amongst the depositions taken the depositions of the staff attorneys at the Professional Liability Fund and provided that they said the same thing that they told me, to let a jury decide what is the appropriate standard of care.

Peter Appleton, Salem

The Right Sentiment

I was quite moved and inspired by Ron Talney’s article in the December 2010 Bulletin entitled “The Best Fee I Ever Earned.” His folksy writing style has a lot of power and the sentiment feels so right. I may have been particularly ripe for this kind of story, but I think everyone who takes the time to read it will feel a bit of a tear forming somewhere deep.

Rick Rappaport, Portland

When Plan B Doesn’t Work…

Having retired a year ago, I have found prior issues of the Bulletin seemingly irrelevant to my ‘new’ life; no articles on adjusting to a new marriage in later life, surviving the early alarm clock, or keeping up an acre of property outside of urban Portland. But the December 2010 edition was outstanding.

Your articles touched some of the areas that have meant most to me since I was admitted in 1973: legal aid, grammar, and (now) retirement challenges. But the Bulletin also helped me learn of the ongoing achievements of my “old” friends Sylvia Stevens, Paul Kelly Jr., Larry Wobbrock, Tom Tongue, Tom Cooney, Albert Menashe; the wonderful prose of my old friend Ron Talney; and the unexpected (and unknown) passing of my colleague Pat Furrer. Helen Hierschbiel’s great article on “wearing two hats” reminded me of the tussles that we had during the ’70s and ’80s when lawyers were chastised for mediating!

Under the judicial department’s Plan B service, I am hearing pro se family law cases each Wednesday (four to six scheduled every week). Your article on legal aid reminded me of the great need this institution has been meeting. Each week, I see families — of many definitions — who cannot afford legal advice and must rely on family court facilitators (if they are available) or me (trying not to practice law) who try to guide them through a myriad of forms, statutes and substantive law. I sometimes feel that I’m conducting mini-family law courses in my hearings.

Which brings me to my query: how can retired/Plan B judges contribute to the need for legal services when we: 1) must do our 35 days per year, so have to serve as judges; 2) can’t afford or don’t want to invest retirement dollars in PLF coverage; and 3) want to avoid conflicts that might arise were we to volunteer to represent litigants — if only for a clinic’s intake process?

I, for one, enjoy the intellectual stimulation that the law has provided for over half of my lifetime, but I can’t fashion a way to use my experience outside of my “Wednesday Court” to help those who could use my services, without running afoul of some law or regulation. I don’t want the financial and time-consuming restraints of an office, a staff or to be locked into a schedule that impedes my garden’s tending — to say nothing of the occasional vacation!

I believe there are around 150 senior judges in Oregon. Many would not return to the practice of law if it paid twice their pensions. Others believe the multinational studies’ research about brain “fatigue,” and want to continue to be a part of the legal community. How can we be participants? I’m open for input from a great legal community!

Kristena LaMar, Boring

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