Oregon State Bar Bulletin — JANUARY 2016


A Moot Approach

I found D.W. Buffa’s more narrow interpretation of the Second Amendment limiting the right to bear arms to that of being within a state militia both a familiar and reasonable one (Letters, November 2015). However, Oregonians should not forget such an argument is a merely academic one for them. Article I, Section 27, of the Oregon Constitution states: “The people shall have the right to bear arms for the defense of themselves …” (Emphasis added)

That being said, the Oregon courts have not hesitated to apply reasonable restrictions on their ownership and use.

Since D.W. Buffa resides in California, this militia-only analysis may be a practical approach, but in in Oregon it is legally a moot one.

James J. MacAfee, Salem


Sensitivity to Fragrances: An Overlooked Disability

I read with interest the article on improving accessibility of our practices (“How Accessible Is Your Practice?”, November 2015), as I believe there are few law offices that could not benefit from reflecting on these issues and making changes as suggested. I was disappointed to note, though, that one of the easiest changes to help some disabled individuals was not discussed at all. Easiest, that is, when there is complete buy-in by management.

I have suffered from a form of Multiple Chemical Sensitivity for many years; when exposed to almost every perfume, many flowers, some cleaners, most fabric softeners, Axe brand deodorant and clothes that were worn when perfume was last applied a month ago, I am struck with a migraine attach. The attack may send me to the hospital, I may be able to do only very simple work, or anywhere in between — it’s completely a crap shoot. I am by no means alone with this disability, although others manifest their disability differently.

To protect myself, I wear a mask in public. I rarely shop, or go to church or go the theater, but I go to court. I am extremely lucky to practice with debtor-creditor lawyers, a small bar of mostly collegial lawyers who are sensitive to my needs and who generally make court a safe place where I can appear without my mask. Other lawyers’ offices, though, are not safe.

The Oregon Department of Justice, where I work, is now the fourth law firm where I have worked that has adopted a fragrance-free policy in acknowledgment of this very real disability. The last two large CLE events I have attended have both been nominally fragrance-free, but they demonstrated how ineffective it is to just announce a fragrance-free policy without training, follow-through and consequences for errors, even without someone suffering as a result of the error.

There are clients, and employees, out there who may not have spoken up yet to tell you that they need to be accommodated, but they are there. Adopting and enforcing a fragrance-free policy is a no-cost, easy and effective way to accommodate this disability.

Carolyn Wade, Eugene


Judicial Candidates Owed Full First Amendment Protections

Thank you for your article on judicial elections (“Judges As Candidates,” November 2015). Oregon needs to start a conversation on the subject. As a failed candidate, I feel that I can contribute.

Now that the U.S. Supreme Court has held that free speech does not apply to judicial elections, Oregon’s antiquated law needs to be changed. Without full First Amendment protections, there is no way the electorate can make an informed choice. It is time for Oregon to adopt a better method of vetting and selecting its judicial candidates.

Timothy M.B. Farrell, Washington, D.C.


Thumbs Down for Multidisciplinary Practice Proposals

Helen Hierschbiel graciously answered ethics questions many times when I was a civil prosecutor for the Oregon Department of Justice. I trusted her deep knowledge and factored it into my research and experience as a member of the Department of Justice Ethics Committee. DOJ and OSB both work to stop the unlawful practice of law. DOJ has been particularly effective stopping lawyers from aiding the unlawful practice of law (as well as deterring lawyers particularly out of state from mortgage fraud).

Unfortunately, in her most recent column, Helen suggests we consider on the thinnest of reasons eroding the separation of lawyers and nonlawyers that almost universally exists in this country (“The Wave of the Future?, November 2015). I often cite my years of eliminating living trust mills to show how bad things get when professional lines are blurred. I believe the 2001 Enron scandal, where lawyers and accountants were so deficient, finished the 1999 ABA Commission plan to permit lawyers to deliver legal services through multidisciplinary practices. Interestingly the accountants in Enron had higher standards of disclosure than the lawyers (the lawyers generally got a pass though I think the main law firm paid significant money into bankruptcy court).

What we do as lawyers will suffer if Helen’s wave of the future swamps independence and confidence keeping. If a lawyer and another professional need to collaborate they can team as independent entities for a client or as one retained by the other. Putting them in the same governance sharing profits will lead to more than full employment for the best and the brightest of experts on legal ethics. Consumers will suffer in a marketplace where lawyers are not truly independent and are part of a profit center. I say NO to multidisciplinary practice.

Thomas K. Elden, Rancho Palos Verdes, Calif.


Zorn Got There First

While Catherine Zorn, an assistant attorney general, might not have been the first woman to argue for the state in the Supreme Court, she does have the distinction of getting there before Justice Linder (“Flying With Her Own Wings,” December 2015). See Kolovrat v. Oregon, 366 U.S. 643 (1961).

Peter Schwabe, Gualala, Calif.



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