Oregon State Bar Bulletin — FEBRUARY/MARCH 2012

Blame Legislature, Not Courts
I appreciated Justice Gillette’s letter to the OSB Bulletin about my recent Parting Thoughts article (Letters, January 2012). While I am not willing to concede that the rule of necessity applies in PERS cases, I recognize that it might apply and Justice Gillette presented a compelling argument as to why it does.

My article, however, was not about the rule of necessity and it was not about the Oregon courts. It was about the Oregon legislature depriving the people of Oregon of independent judges in PERS cases. For the first 40 years that PERS existed Oregon’s judges were not in PERS and they had no significant financial stake in the outcome of any PERS case. That changed in 1984 when the legislature put the judges into PERS.

If the rule of necessity does apply in PERS cases, and it very well may, then the legislature made the judges the judge of their own case. The constitutionality of such an action is questionable, and I am aware of no case upholding such a law. If the Oregon legislature can deprive us of our right to an independent tribunal in PERS cases, the legislature’s ability to deprive us of our rights in other situations is limited only by its imagination. I am very uncomfortable with that prospect as the legislature has demonstrated that it has a phenomenal imagination.

Daniel C. Re, Bend

A Fair Issue of Concern
I read both Daniel Re’s Parting Thoughts article (“PERS and Judicial Independence,” December 2011) and the letter from Mr. Charles Bates commenting on Mr. Re’s article (January 2012).

It appeared to me that Mr. Re’s article focused on whether the legislature, by mandating that all judges would participate in and benefit from PERS, had created a situation where there would be the potential of a built-in conflict of interest or the potential for the appearance of impropriety, if those same judges had to rule on issues concerning the PERS system. Mr. Bates’ letter characterizes Mr. Re’s article as “propaganda” and also states that Mr. Re had “accused all of Oregon’s judges of pro-PERS bias.” Mr. Re’s article does not accuse all Oregon judges of pro-PERS bias, nor is it fair to call his article “propaganda.” He raises an issue, which many citizens, particularly nonlawyers, may have concerns about.

Martha J. Rodman, Eugene

Lawyers Are Not Alone
In response to Mr. Appleton’s letter in the January 2012 issue, asking why lawyers should be singled out to provide free or low cost services: We are not singled out. Every human being has a moral obligation to help those in need. We, as lawyers, are being asked to provide help with legal services because we are fortunate to have the ability to provide those services. But we’re not alone. The American Medical Association’s Code of Ethics states that “[e]ach physician has an obligation to share in providing care to the indigent.” Accountants — and many other people — volunteer every year to prepare tax returns, for free, for low-income families.

Volunteering to read to a child does not disrupt the effort to improve schools. Likewise, giving an hour of your time to go over custody papers with a young parent does not abandon the argument that our society, in general, should provide for its neediest members. If anything, it sends the message that lawyers truly believe in the importance of legal services in securing access to justice.

If we see a person stumble to the ground, will we reach out a hand to help them up?

Beverly West, Dallas

Lawyers Set the Example
With regard to Oregon lawyers helping fund legal services through the Campaign for Equal Justice, Salem lawyer Peter Appleton asks: “When we fall into the trap of assuming an obligation to provide (free or low-cost legal services), don’t we abandon the argument that taxpayers in general have an obligation to provide all citizens with access to justice?”

The answer is no, we don’t abandon the argument. Instead we make the argument more forcefully. We set an example for all citizens when we say, “We lawyers support the Campaign for Equal Justice and we provide pro bono legal services because access to justice is important to us, and we think it should be important to everyone else.”

Mary Oberst, Portland

Thoughts on Bulletin, Directory
Today I received my copy of the bar Bulletin. I must confess that I look forward to this publication. I particularly enjoyed reading about Mitzi Naucler, my friend and former Board of Governors colleague (“Ringing in the New Year,” January 2012).

I also received what used to be called the Oregon State Bar directory. It is now a product and service catalogue for lawyers. Unless this attorney’s guide is a definite profit center for the bar, I call into question its continued existence. Along with the Oregon lawyers’ listing, virtually every bit of resource information contained in the catalogue may be accessed through a personal computer. I would ask the Oregon State Bar administration to look into this. We might be able to save a few trees in the process.

One last thing: the cover photo is beautiful! Why can’t we just get the cover photo in December with the bar’s web address and a holiday greeting?

Angel Lopez, Portland

Editor’s note: The Attorney’s Guide to Products and Services is indeed a profitable venture, and, we hope, provides a service to members and the advertisers alike. We welcome suggestions for the Bulletin. Keep them coming!

Kudos to General Counsel’s Office
I enjoyed Helen Hierschbiel’s “Asked and Answered” (January 2012) for its pragmatism, accessibility and intelligence in the same manner that I have, on a regular basis, appreciated those identical qualities in every bar counsel response to me whenever I call that office for assistance — which is frequent, given my somewhat unusual practice. Time and again, the general counsel’s office lawyers have impressed me with the extensive thought and time each will invest in untangling the various ethical puzzles that animal law cases tend to generate. A quarter century into this game, I have learned that navigating the rules of moral conduct demands constant education and vigilance, and I for one am very grateful that our bar has developed such a remarkable resource to aid its members along that route.

Geordie Duckler, Tigard

Clarifications and Responses
In the article “Asked and Answered” (Bar Counsel, January 2012), a citation regarding settlement without client’s authority was misstated, The correct citation is OSB Formal Ethics Op No 2005-33.

From the editor: A letter to the editor from David Wade of Eugene last month took issue with the elements of the article “Behind the Discrimination Lawsuit” by Jeffrey Jones (December 2011). To clarify: “About the author” sections are typically brief and do not usually include detailed or lengthy descriptions about a firm’s clientele or representations. Further, while not a hard-and-fast rule, the Bulletin discourages the use of indent, preferring in-line citations where possible. Jones’ original article included indent, which were converted or intentionally removed by the editors.

Jones, author of the original article, adds: Despite the many views expressed in our article, Mr. Wade disagrees with a single one of those views. To prove us wrong on that one point, he cites Robert Reich, an important national voice on labor and employment, whose views I usually agree with and to whom I often defer. But to suggest that Reich’s views represent absolute truth, such that no one could reasonably disagree, I believe is faulty reasoning — but I leave it to readers to draw their own conclusions. Finally, a lot of research went into this article, very much of which is not from the Internet. I support the work of the two law students who helped me research this article. Both are excellent law students and researchers.

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