|Oregon State Bar Disciplinary System Task Force Report|
July 15, 2002
The Oregon State Bar House of Delegates passed a resolution at its meeting in September 2001 directing the Board of Governors to establish and supervise a comprehensive study of the Oregon State Bar disciplinary system. This resolution is attached to this report as Exhibit 1. The resolution further directed the Board of Governors to report at the 2002 HOD meeting on the results of the study, and to make recommendations to the HOD at that meeting on changes it believes should be made to present disciplinary statutes, rules and processes. The resolution directed that the study provide for input from the OSB membership and other interested groups within each region of the bar and, if possible, with the assistance of local bar associations. The resolution directed that the study be broad in scope, but include the review of nine areas. Those areas included:
1. The specific purposes and goals of the disciplinary process;
2. The appropriate speed of the process;
3. The process of setting enforcement priorities;
4. The appropriate use of volunteers or paid staff; and
5. The appropriate methods for the bar to debate, develop ethics rules, and educate lawyers on those rules, other than the current adversarial case law system of resolving ethics complaints.
In October 2001, 2001 OSB President Ed Harnden appointed the Task Force, which consisted of one judge, nine lawyers, and one member of the public. Task Force appointees represent different geographical areas, practice settings, and practice areas.
The members of the Disciplinary System Task Force are Dennis Karnopp, chair (Bend); Brad Berry (McMinnville); Marc Blackman (Portland); Court of Appeals Judge David Brewer (Salem); Win Calkins (Eugene); Tom Christ (Portland); Kelly Doyle (Portland); Linda Eyerman (Portland); Mary Mertens James (Salem); and Judy Uherbelau (Ashland). Bette Worcester, a public member of the Board of Governors, is BOG liaison to the group.
Nine meetings of the full Task Force were held between November 2001 and July 2002. In addition, subgroups attended meetings around the state seeking input from the membership and the public. Several subcommittees worked on specific issues.
The Supreme Court has consistently emphasized that the purpose of lawyer discipline is protection of the public. Ex parte Tanner, 49 Or. 31, 36, 88 P. 301 (1907); In re Meyer (II), 328 Ore. 220, 226, 970 P.2d 647 (1999). The two most consistent complaints heard by the Task Force - both of which adversely affect this purpose - were:
1. The disciplinary process is too slow;
2. The disciplinary process is [or at least is perceived to be] 'biased.' 1
The task force considered, but ultimately did not adopt, recommendations that would address these issues directly. It chose, instead, to focus on what it found to be their root causes.
On the delay issue, for example, the task force rejected the idea of reducing or eliminating the role of 'volunteers' (to which much delay is attributed) both because it found broad support for keeping 'regular lawyers' an integral part of the investigation, charging, and decision-making process and because it found little support for cost increases which would result from replacing volunteers with paid staff. For the same reasons, it also rejected resort to 'sanctions' to enforce the deadlines that are already part of the process. See, e. g. BR 2.5(a) (investigation by disciplinary counsel); BR 2.5(e) (LPRC investigations and reports); BR 5.4 (hearing schedules); BR 2.4(i)(2)(a) (issuance of trial panel opinions).
On the bias issue, the task force questioned whether an objective assessment were possible. It concluded that even if it was, it lacked the time and resources to perform it and doubted that it would put the perception issue to rest. Specific proposals - for example, using criteria related to practice area (such as criminal or domestic relations law) when processing complaints or practice setting (such as size and type) when assessing possible disposition - were therefore put aside, at least for the time being.
The task force believes that its recommendations, if adopted as a whole, will significantly reduce the time required to resolve legitimate disciplinary problems and generate confidence in the public and the bar that the process is thorough, fair, effective, and focused on its purpose: protection of the public.
Summary of Task Force Recommendations
1. Revise the Oregon Code of Professional Responsibility to make it simpler, less vague and easier to follow.
2. Recognize reliance on the advice of general counsel as a showing of a lawyer’s good faith effort to comply with the Code or in mitigation of a disciplinary violation.
3. Ask the CLE Committee to develop and promote ethics programs directed to lawyers practicing in areas and settings that appear to generate a disproportionate number of complaints.
4. Create a Consumer Assistance Program within General Counsel’s Office to help clients and lawyers resolve problems which do not involve ethics issues, but could if left unaddressed.
5. Implement a diversion alternative for certain types of violations and circumstances.
6. Provide for the 'expungement' of inquiries and complaints which are dismissed after investigation.
7. Vest the SPRB with discretion not to prosecute cases involving violations that are technical or did not result in injury.
8. Create a 'disciplinary case manager' for filing and calendar management purposes within General Counsel’s Office.
9. Develop a voluntary alternative dispute resolution option to formal contested case proceedings.
10. Abolish 'automatic' Supreme Court review in all cases, including those in which the trial panel recommends a sanction greater than a six month suspension.
11. Encourage greater use of BR 6.2(a) probation as a sanction.
12. Create a definition of 'Disciplinary Complaint' for purposes of bar recordkeeping.
Report of the Task Force
The task force and OSB staff discussed how to best collect useful information concerning the charge of the task force. Beyond extensive discussion at nine task force meetings, the task force and bar staff engaged in the following activities to gather information about the issues the task force was charged with reviewing:
1. All Oregon State Bar members were contacted by e-mail, fax or mail and asked to provide input on the issues contained in the 2001 HOD resolution. The task force received and reviewed all responses.
2. All bar members were also asked to participate in an electronic survey (the results of which are attached as Exhibit 2). Almost five hundred lawyers responded to this survey. The task force received and reviewed the survey results.
3. Task force members talked to many bar members personally on an ad hoc basis about their concerns.
4. Task force members and staff arranged and participated in a number of educational/feedback events concerning the work of the task force. They included meetings with the Disciplinary Board, the Deschutes County Bar Association, Jackson County Bar Association, Lane County Bar Association, Marion County Bar Association, Gus Solomon Inn of Court, and the Sixth Judicial District Bar Association (Pendleton).
5. The task force asked bar staff to compile statistics regarding the disposition of ethics complaints over the period of 1998 to 2001.
6. At its invitation, members of the Supreme Court, the State Professional Responsibility Board, and local professional responsibility committees attended one or more meetings of the Task Force. Also at its invitation, staff from the bar’s general counsel’s office, staff from its disciplinary counsel’s office, and attorneys who regularly defend lawyers in the disciplinary process appeared and shared their views and perspectives. A number of interested bar members attended each task force meeting and provided input on a variety of topics.
7. Questionnaires were sent to lawyers and judges who had made complaints to the bar about lawyers for a sample period of time. Questionnaires were also sent to members of the public who had made complaints about lawyers for a similar period of time.
8. Information was obtained from other state bars and other professional organizations on specific topics.
The task force has discussed all aspects of the disciplinary process from start to finish. The task force reviewed the time frame for the initial review of complaints, staff action on complaints, their review by the State Professional Responsibility Board, the trial process before the Disciplinary Board, and the review process before the Oregon Supreme Court. The task force discussed and debated many issues, including the following:
1. Is the process, at one or more or all stages, too slow?
2. Is the process biased against certain lawyers?
3. Should lawyers be able to rely on telephone ethics advice from the bar as a complete defense to ethics charges or, at a minimum, as mitigation of any sanction imposed for action taken in reliance on that advice?
4. Should dismissed complaints be expunged from member records after the passage of some period of time?
5. Could the bar help clients and lawyers resolve customer service issues even if they did not state an ethics violation?
6. Could minor violations be resolved by providing lawyers with help in addressing their cause as opposed to imposing a sanction such as a reprimand or short term suspension?
7. Could disputes over the interpretation of disciplinary rules be resolved by use of procedures other than disciplinary prosecutions?
8. Was the volunteer trial panel system for adjudicating disciplinary complaints working?
9. Should the State Professional Responsibility Board be given more discretion in deciding whether charges should be filed? Are there situations and circumstances where prosecution may not be warranted even if a rule violation has occurred?
Refinement of Issues
Following extensive discussion of the foregoing issues and others, the task force undertook to narrow the issues it felt deserved further consideration. The group wanted to focus on potential improvements to address key trouble spots in the disciplinary process. The initial list of key issues included:
1. Rewriting the Code of Professional Responsibility to make the rules clearer and more concise.
2. Establishing a Consumer Assistance Program to deal with attorney-client communication and related issues.
3. Establishing a Diversion Program to offer alternatives to discipline to resolve minor ethics violations.
4. Adopting a rule that allows for the expungement of dismissed complaints from membership records after the passage of a designated period of time.
5. Adopting a rule giving the State Professional Responsibility Board greater authority to decline prosecution for very technical violations or cases of 'no harm, no foul.'
6. Establishing a fast track process to obtain a judicial ruling regarding the meaning of disciplinary rules in lieu of full-blown disciplinary proceedings.
7. Creating the position of presiding judge of the Disciplinary Board who would oversee the trial process. Support staff in the form of a central filing/monitoring clerk could be provided. The presiding judge would be responsible for ensuring all trial panels completed their cases in a timely manner and that all necessary paperwork was similarly processed.
8. Changing the threshold for automatic review of cases by the Supreme Court from the current level (more than a six month suspension) to a higher level. Similarly, changing the current standard of de novo review by the Supreme Court to something more deferential to the rulings of the trial panels.
9. Adopting a rule that allows for reliance on bar ethics advice to serve as mitigation by the trial panel or the Supreme Court in imposing sanctions.
10. Directing the bar to provide additional continuing legal education focusing on ethical issues that lawyers in high complaint practice areas face on a recurring basis.
11. Adopting 'sentencing' guidelines to give greater assurance to lawyers of the sanctions that would most likely be imposed for particular rule violations.
12. Adopting a rule that provides alternative sanctions for violations of the Code of Professional Responsibility such as alternatives to suspensions for sole practitioners.
TASK FORCE RECOMMENDATIONS
PROPOSAL # 1:
Revise the Code of Professional Responsibility
The Task Force heard a variety of complaints about the disciplinary process. Many were not really complaints about the process itself, but about the ethical standards the process is meant to enforce. In other words, for these complainants, the problem is substantive, not procedural. They believe that the profession is over-regulated – that it is subject to too many disciplinary rules, and that too many of the rules are so vague and indefinite they do not give fair notice of what is prohibited. For instance, DR 6-101(A) provides that '[a] lawyer shall provide competent representation to a client.' What exactly is 'competent' representation? DR 6-101(B) says a lawyer 'shall not neglect a legal matter? When exactly does procrastination turn into actionable 'neglect'? DR 3-101(A) provides that a lawyer shall not aid a non-lawyer in the 'practice of law' – a term that has proved nearly impossible to define in other settings. See State Bar v. Security Escrows, Inc., 233 Or. 80, 85-86, 377 P.2d 334 (1962). DR 1-102(A)(4) prohibits 'conduct that is prejudicial to the administration of justice.' What precisely is within – or, perhaps more importantly, without – the reach of the rule?
Law, of course, is not the only regulated profession. All professionals are subject to regulatory schemes of one sort or another. And everyone, professional or otherwise, is subject to the criminal code. But the rules for lawyers seem so much more pervasive, and so much less precise – perhaps because the modern Code of Professional Responsibility is based on provisions in earlier codes that were meant to be goals or aspirations, not proscriptions, and thus appeared as generalities. See In re Tonkon, 292 Or. 660, 664, 642 P.2d 660 (1982) (explaining that the 'Canons' and 'Ethical Considerations' of the American Bar Association’s Model Code of Professional Responsibility 'were intended as guides to professional conduct but not as tests for disqualifying or otherwise disciplining members of the bar').
It is beyond the mission of this Task Force to review the disciplinary rules with an eye toward making them simpler and less vague and thus easier to follow. Nevertheless, the Task Force recommends that the Bar undertake such a review, believing it may help to reduce lawyer dissatisfaction with the disciplinary process. With less 'process' and clearer DRs, fewer lawyers will unwittingly violate the rules (or be accused of doing so). At the same time, witting, or knowing, violations, will be easier – and, hence, quicker – to prove. The task force supports the efforts currently underway by the ABA and the OSB Ethics Committee to review the OSB Code of Professional Responsibility.
PROPOSAL # 2:
Recognize Reliance on the Advice of General Counsel as a showing of a lawyer’s good faith effort to comply with the Code or in mitigation of a Disciplinary Violation
The case of In re Brandt/Griffin, 331 Or 113, 10 P3d 906 (2000) indicated that legal ethics advice from Bar General Counsel does not provide a defense to disciplinary violations and does not estop the Bar from charging violations based on conduct undertaken after obtaining the advice. The court did not reach the question of whether the attorney had 'fully and accurately informed' Bar counsel. The court cited the earlier case of In re Ainsworth, 289 Or 479, 614 P2d 1127 (1980). However, it should be noted that in the case of In re McMenamin, 319 Or 609, 879 P2d 173 (1994), both the concurring and dissenting opinions took the accused seeking Bar legal ethics advice into consideration in their analysis regarding the lawyer's conduct.
The In re Brandt/Griffin opinion has resulted in a number of comments to the Task Force about the fairness of the ruling in that case. The Task Force considered not only the comments of various persons to the Task Force verbally and in writing but also a prior ethics survey conducted by the Bar on ethics advice and prior studies and reports on the topic, as well as the approaches taken by other states.
Alabama, Florida and West Virginia are states which have a formal rule on ethics advice as a defense or mitigation. States with a practice recognizing ethics advice as defense or mitigation include Colorado, Michigan, Missouri, Oklahoma, Rhode Island (not clear if formal rule), Tennessee, Utah, Virginia and Washington. States without a formal rule or recognized practice are Alaska, Delaware, Idaho, Maryland, Massachusetts, Texas, Washington, D.C. and Wisconsin. States with rules explicitly stating that ethics advice is not a defense or mitigation include Illinois and New Jersey. These findings were based upon informal e-mail surveys which did not necessarily cover every state.
Issues the Task Force considered are the perception of unfairness by Bar members, the need for upholding the ethics rules, whether a rule should cover oral advice from the Bar versus written advice, the practicality of logging in oral inquiries and taking notes, and attendant proof difficulties as well as staffing implications, the issue of time lag to obtain written opinions, the implications for the public records law, and whether a rule allowing reliance on Bar counsel should be extended to reliance on private counsel.
The Task Force decided that the accused should be able to rely upon written opinions of the Bar. Written opinions include e-mail communications. The Task Force decided to propose a new disciplinary rule modeled after Judicial Rule 6 entitled 'Advisory Opinions on Judicial Conduct; Consideration Given in Judicial Conduct Proceedings.'2
The new DR 1-105 which the Task Force recommends reads as follows:
DR 1-105 Written Advisory Opinions on Professional Conduct; Consideration Given in Disciplinary Proceedings
(A) The Oregon State Bar Board of Governors may issue formal written advisory opinions on questions under this code. The Oregon State Bar Legal Ethics Committee and General Counsel may also issue informal written advisory opinions on questions under this code. The General Counsel's Office of the Oregon State Bar shall maintain records of both OSB formal and informal ethics opinions and shall make copies of each available to the Oregon Supreme Court, Disciplinary Board, State Professional Responsibility Board, and Disciplinary Counsel. The General Counsel's Office may also disseminate the bar's advisory opinions as it deems appropriate to its role in educating lawyers about this code.
(B) In considering alleged violations of this code, the Disciplinary Board and Oregon Supreme Court may consider any lawyer's good faith effort to comply with an opinion issued under subsection (A) of this rule as
(1) a showing of the lawyer's good faith effort to comply with this code; and
(2) a basis for mitigation of any sanction that may be imposed if the lawyer is found to be in violation of this code.
(C) This rule is not intended to, and does not, preclude the Disciplinary Board or the Oregon Supreme Court from considering any other evidence of either good faith or basis for mitigation in a bar disciplinary proceeding.
PROPOSAL # 3:
Coordinate Programming with the CLE Committee to Address 'High Risk' Practice Areas and Settings (Ethics Violation Prevention)
It is evident that a disproportionate percentage of ethics complaints and founded violations tend to concentrate in certain areas of litigation practice. The most obvious areas of concern are (1) criminal defense and prisoner litigation practice; and (2) domestic relations. Those specialties, although substantively unrelated, are joined at the hip by the confluence of high emotional and practical stakes for clients and other stakeholders.
Plans for systemic improvement should focus on membership categories that attract statistically disproportionate complaints and violations. Specifically, the bar should exert its best efforts to target educational and support services to practitioners in high-risk categories. Those services should include ethics, professionalism and malpractice avoidance training. Each year, Disciplinary Counsel should identify and statistically analyze bar complaints based on known high-risk categories, and should attempt to identify emerging trends, if any, as well. Disciplinary Counsel should forward that analysis, in report form, to the Board of Governors, the House of Delegates, and the CLE Publications and Seminars Departments of the Oregon State Bar and other Oregon bar-related organizations.
The Board of Governors and House of Delegates should review annually the array of educational and support services offered by the Oregon State Bar in light of Disciplinary Counsel's report, and specifically should direct the provision of appropriate targeted services to membership categories burdened by a disproportionate risk of ethics complaints and founded violations.
The bar should annually study whether certain disciplinary rules impose greater burdens on certain practice areas and should study whether changes should be made to the disciplinary rules to address these concerns.
PROPOSAL # 4:
Establish a 'Consumer Assistance Program'
The Task Force recommends the establishment of a Consumer Assistance Program (CAP) under the auspices of the General Counsel’s Office for the purpose of resolving minor problems between attorneys and clients which do not involve an ethics issue. Disciplinary Counsel would continue to be responsible for the initial intake and screening of all written inquiries concerning lawyers. For those matters that disciplinary counsel determined did not raise an arguable ethics violation or were subsequently dismissed, disciplinary counsel would have authority to refer them to the CAP program for purposes of attempting to resolve the problem.
A number of states have established Consumer Assistance Programs to field inquiries and complaints about lawyers and assist in resolving them. The overall goal is to resolve minor conflicts and disputes between the public and lawyers before they become serious disciplinary problems. Georgia and Mississippi were the first states to implement a consumer assistance program, but similar programs now exist in Colorado, Arizona, Utah, Hawaii, Kentucky, and other states.
The Oregon State Bar staff began gathering information about CAP programs in 1997 but did not pursue proposals for an Oregon program due to resource limitations. In 1999 the Board of Governors became interested in the concept and initiated a study of CAP programs in other states. Based on favorable reports, the Strategic Planning Committee agreed to fund a six-month pilot program known as the Client Ombudsman. This program began in February 2000 and was staffed by a .5 FTE attorney. A follow-up survey of clients and attorneys who had participated in the program showed high satisfaction with the services received.
The role of the CAP as recommended by the task force would be broader than the Pilot Client Ombudsman pilot project which the Oregon State Bar sponsored in 2000, in that the CAP would not only respond to telephone calls, but would also handle some of the substantial number of written inquiries and/or complaints filed with Disciplinary Counsel. At the discretion of Disciplinary Counsel, some of these matters would be forwarded to CAP for reply or intervention.
PROPOSAL # 5:
Currently all matters referred to the Bar for alleged misconduct are treated the same. It is not uncommon that the investigation into the allegations may readily determine that the conduct complained of occurred, was relatively minor, and was principally caused by an underlying problem of the attorney such as substance abuse, mental health problems, temporary personal problems, or other causes. In 1997 the Oregon Supreme Court rejected a Bar proposal for a diversion program.
The Task Force recommends further investigation into, and the development of, a Diversion Program for minor violations of the DR's when such violations are primarily caused by an underlying problem of the accused attorney. Such a program would incorporate a process or protocol to aid the subject lawyer in addressing the underlying problem causing the violation such that the violation is unlikely to occur again. Upon successful completion of the Diversion Program, the disciplinary matter would be dismissed. Such a program should be available only once to a particular attorney. Standards for such a program should be clear. Diversion could occur at any point during the disciplinary process, preferably before the filing of a formal complaint by the State Professional Responsibility Board (SPRB).
Protection of the Public
Although the disciplinary process may serve other purposes, the main function is to protect the public. When a lawyer develops a personal problem which inhibits his/her ability to adequately represent clients, and to such a degree as to commit ethical violations, disciplining the attorney does not necessarily enhance the protection of the public. By aiding the attorney to address the underlying problem, and correct it, a diversion process would not only protect the public from the likelihood of future violations, but also help the attorney from finding him/herself in a similar situation.
Oregon criminal law has long recognized that in suitable circumstances, the District Attorney and the Court may find it appropriate to divert a criminal case from the normal process by referring the Defendant 'to a supervised performance program prior to adjudication.' ORS 135.881(2). In fact, a similar program referred to as 'Conditional Discharge', initially limited to drug offenses, was expanded by the 2001 Legislature to include other crimes showing a public interest in treating the underlying problem rather than obtaining a conviction. As an aside, the conditional discharge process differs from the diversion process by requiring an offender to enter a plea of guilty before being placed into the program; diversion does not. The criminal diversion system recognizes considerations including the nature of the offense, special characteristics or difficulties of the offender, whether the offender is a 'first-time' offender, the probability that the offender will cooperate and benefit from a treatment alternative, and other factors. ORS 135.886(2). During the diversion period, the proceedings are stayed. The offender enters into a specific diversion agreement setting forth the requirements necessary to successfully complete the diversion. Upon successful completion of the program, the matter is dismissed.
A diversion program adopted by this State would not be unique. The States of Washington and Arizona both have diversion programs. Each program recognizes the benefit of early identification of attorneys that have committed 'less serious' violations of Rules of Professional Conduct which do not raise questions about their moral fitness or integrity to practice law. Both prohibit Diversion where the alleged conduct involved serious misconduct. Both recognize the need for an early referral of the attorney to an appropriate alternative disposition. Each provide for a Diversion Contract or Memorandum of Understanding. Although the two programs do differ in process, both appear to recognize the benefit of a structured program resulting in dismissal of the disciplinary complaint once the attorney has successfully dealt with a recognized underlying problem.
The American Bar Association also endorses the use of Diversion programs in appropriate cases and provides guidance into which types of misconduct may be suitable for diversion.
To implement a Diversion Program would require a change to the Bar Rules of Procedure. The BOG would present such a proposal to the Supreme Court.
PROPOSAL # 6:
Expungement of Inquiries and Dismissed Disciplinary Complaints
Since the Oregon Supreme Court’s decision in Sadler v. Oregon State Bar, 275 Or. 279, 550 P.2d 1218 (1976) the disciplinary records of Oregon lawyers have been subject to public inspection under the Public Records Law. ORS 9.010(1) currently provides that the Oregon State Bar is subject to the Public Records Law.
While public access to the records of bar members who have been admonished by the State Professional Responsibility Board or disciplined by the Disciplinary Board or Supreme Court is in the public interest for a variety of reasons, some bar members have been and continue to be concerned that dismissed complaints remain a part of their public membership records with the Oregon State Bar. These members feel stigmatized by the false assumption that a dismissed complaint about their conduct is a disciplinary record. After carefully considering these concerns, the task force believes that allegations of misconduct that the bar has investigated and dismissed should be expunged from the public records of the Oregon State Bar four years after their dismissal. Expungement would result in the separation of the records of dismissed complaints from other bar membership records. Expunged records would be sealed and would not be available for public inspection except as authorized by the circuit court on motion of the bar, the accused or other interested party and a showing of good cause. See, for example, the process for obtaining access to expunged criminal records under ORS 137.225(9), (10), and (11).
The task force recommends that the Board of Governors and House of Delegates approve the development of whatever statutory and rule changes may be necessary to establish this expungement process for inquiries and dismissed complaints. Dismissed complaints will include any complaint or inquiry that did not result in discipline or admonition. They will also include the records of formal disciplinary charges that were dismissed by final action of the Disciplinary Board and the Oregon Supreme Court.
The OSB House of Delegates rejected a member resolution in 1998 that would have authorized the bar to sponsor legislation in the 1999 legislative session seeking to exempt frivolous bar complaints from public disclosure. The resolution defined what was considered a frivolous bar complaint. The task force’s proposal is significantly different. All dismissed complaints will be treated the same and they will be available for public inspection for four years. Upon the passage of that period of time, the records will be removed from the public records of the bar, but retained in a sealed fashion. The bar, the accused, and other interested parties will have the right to petition the circuit court for access to the sealed material upon a showing of good cause.
The State Professional Responsibility Board has very little discretion in deciding whether to charge a lawyer with an ethics violation. It can resolve minor transgressions with a letter of admonition. See BR 2.5(d)(1)(B) and (f)(1)(B). But if the SPRB finds probable cause to believe that misconduct has occurred, it must authorize the filing of a formal complaint, except in limited circumstances that do not include the absence of demonstrable harm to the client or public. See BR 2.5(h)(2).3 In this regard, the SPRB does not have 'prosecutorial discretion' to dismiss 'no harm, no foul' cases or cases involving only technical violations of the rules.
The Task Force believes that the SPRB should be given that discretion. The purpose of the disciplinary rules is to protect the public, In re Huffman, 331 Or. 209, 223, 13 P.3d 994 (2000), and in cases where there is an apparent violation of the rules but no apparent harm to the public or any member of it, the SPRB should be able, if it so chooses, to dismiss the case without even a letter of admonition. Not every violation of the criminal code requires prosecution. Likewise, not every ethics violation requires discipline. Just as district attorneys should have the discretion not to charge in appropriate cases, so should the SPRB.
The Task Force recognizes that giving the SPRB greater discretion in charging decisions may alarm those lawyers who believe that the present disciplinary process is biased against lawyers in small firms. But the Task Force believes there is no bias within the SPRB itself and that giving that body the discretion to dismiss technical and non-harmful violations of the disciplinary rules will inure to the benefit of all lawyers, including small firm practitioners. At the same time, it will not harm the public, two members of which, it should be remembered, sit on the SPRB.
For these reasons, the Task Force recommends that the Bar submit to the Disciplinary Rules and Procedures Committee, for its review and referral to the Supreme Court, an amendment to BR 2.5 that would give the SPRB the discretion to dismiss cases involving technical or non-harmful violations of the DRs.
PROPOSAL # 8:
Create a 'Disciplinary Case Manager'
In the state court system in Oregon, cases are filed with the court clerk and given a case or docket number. All pleadings thereafter are also filed with the court and are maintained in the court file.
The foregoing model is not followed in the current lawyer discipline system. Instead, a case is 'filed' when the formal complaint is signed by Disciplinary Counsel. Thereafter, pleadings are maintained in a file for each case by Disciplinary Counsel, although an accused lawyer often files his or her pleadings directly with a trial panel or, mistakenly, directly with the Supreme Court.
The task force recommends that the rules of procedure be amended so that the filing process for disciplinary cases more closely resemble the filing process for cases in the Oregon court system. While the specific rule changes will have to be worked out at a later date, the general contours of the task force’s recommendation are as follows:
1. Every formal complaint and subsequent disciplinary pleading in each case will be filed with a clerk who will be responsible for maintaining the official file in each case and reporting to the Disciplinary Board Chairperson regarding the number and status of all pending matters at the trial level. The task force recommends that this function be assigned to personnel under the supervision of the OSB General Counsel. The General Counsel’s Office has for a number of years been responsible for the Disciplinary Board appointment process and the yearly Disciplinary Board Conference. This new function is merely an extension of these activities.
2. The Disciplinary Board Docket Clerk should also assist the state chair and trial panel chairs in processing paperwork, scheduling hearings, and making other appropriate arrangements for hearings.
Disciplinary Counsel shouldn’t serve in the dual capacity of prosecutor and Disciplinary Board Docket Clerk. These functions should be separated. General Counsel’s Office should serve as Disciplinary Board Docket Clerk to maintain the official file in all formal disciplinary proceedings and to assist the Disciplinary Board in the performance of its trial court functions in the disciplinary process. The task force concluded that having a case manager as recommended in this proposal will help avoid the delays that occur after the filing of the complaint.
PROPOSAL # 9:
Develop a Voluntary 'Alternative Dispute Resolution' Option to Formal Contested Case Proceedings
A previous rule required mandatory pre- trial settlement conferences. The Disciplinary Board concluded this was an added layer of process that was not effective, so in 1995 the Supreme Court changed the rule to make the conferences optional.
BR 4.6 and 4.7 are the Bar Rules of Procedures that are involved, although neither specifically identifies that a settlement conference is an available tool to resolve a complaint short of a hearing. The rule references the right of either party to request a pre-hearing conference. The request must be made within seven days of mailing the pleadings to the trial panel, and the pre-hearing conference must take place more than 21 days before the hearing, and is conducted by a member of the Disciplinary Board.4 Attendance is mandatory by the Bar, the accused and counsel for the accused. The rule does not specifically identify settlement discussion or mediation as an element of the pre-hearing conference. It speaks only to the ability to narrow factual or legal issues, or to 'facilitate discussion regarding discipline by consent under BR 3.6, if appropriate.'
The task force recommends to the Board of Governors that it identify by rule case assessment or mediation as an alternative process available to the Bar and the accused attorney to resolve disciplinary complaints.
Case assessment is defined on the web page of the Oregon Dispute Resolution Commission as: 'the use of an impartial third party who will work with parties to determine the potential for settlement, what type of process would assist in settlement, the cost of such a process, who should participate in such a process and an estimated timeframe in which settlement may occur.'
Mediation is defined on the web page of the Oregon Dispute Resolution Commission as: 'the intervention into a dispute or negotiation by an acceptable, impartial, and neutral third party who will assist contending parties negotiate a mutually acceptable settlement of issues in a dispute. The mediator has no decision-making authority.'
Both parties must agree to participate in the mediation. Mediation may occur at any time after the filing of a formal complaint by the SPRB, although its scheduling shall not displace or delay a hearing that has been scheduled.
After a trial panel issues a decision, only the State Chair can authorize mediation. Settlement agreements reached through mediation are subject to approval in the same manner as Discipline by Consent (BR 3.6). Other rules may require amendment to authorize settlement of formal complaints, through mediation. It is unclear, for example, who has the authority to consent to dismissal of a complaint, to an alternative sanction, etc.
The Board of Governors should appoint a work group to assess the best approach to implementing a mediation process into the disciplinary hearing process, the stages at which it is available, and the designation of a list of qualified, trained mediators to conduct said mediations. Expenses for the mediator would be shared unless the parties agreed otherwise.
PROPOSAL # 10:
Require Review by the Supreme Court only in those Cases in which one Party Desires Review
ORS 9.536(1), (2) and (3) currently provide as follows:
9.536 Board decision; appeal to Supreme Court; review; costs.
(1) Upon the conclusion of a hearing, the disciplinary board shall file with the State Court Administrator a written decision in the matter. If the decision of the disciplinary board finds the accused attorney has not committed the alleged wrongdoing or determines that the accused attorney should be disciplined by way of reprimand or suspension from the practice of law up to a period of six months, the Oregon State Bar or the accused, as the case may be, may seek review by the Supreme Court. Such review shall be a matter of right upon the request of either party. Otherwise, the decision of the disciplinary board shall be final. The procedure for seeking discretionary review and on review shall be as provided in the rules of procedure.
(2) If the decision of the disciplinary board is to suspend the accused attorney from the practice of law for a period of longer than six months or to disbar the accused attorney, the matter shall be reviewed by the Supreme Court. The procedure on review shall be as provided in the rules of procedure.
(3) When a matter is before the Supreme Court for review, the court shall consider the matter de novo and may adopt, modify or reject the decision of the disciplinary board in whole or in part and thereupon enter an appropriate order.
As can be seen from a review of ORS 9.536(1), the Oregon Supreme Court automatically reviews any disciplinary case involving a suspension of more than six months.
The task force recommends that the Board of Governors and House of Delegates approve the sponsorship of legislation during the 2003 legislative session to change this standard of review to eliminate the automatic review of disciplinary cases by the Supreme Court. Corresponding changes would have to be made to the Bar Rules of Procedure. An amended ORS 9.536(1) would read as follows:
Upon the conclusion of a hearing, the disciplinary board shall file with the State Court Administrator a written decision in the matter. The Oregon State Bar or the accused may seek review of the trial panel decision by the Supreme Court. Such review shall be a matter of right upon the request of either party. Otherwise, the decision of the disciplinary board shall be final. The procedure for seeking review and on review shall be as provided in the rules of procedure.
The foregoing change would eliminate the automatic review of suspensions of more than six months or disbarments. The parties would have a right to Supreme Court review of any trial panel decision. If neither party sought review, the decision of the trial panel would be final.
The task force also recommends that the rules of procedure be amended to give each party sixty days from the filing of the trial panel decision to file a notice of review with the Supreme Court. BR 10.3 currently gives the parties twenty-eight days to file a request for review. Sixty days should give both the bar and the accused adequate time to consider whether to ask the court to review a decision of the trial panel.
These changes should reduce the disciplinary workload of the Supreme Court while preserving the right of the parties to obtain Supreme Court review of a trial panel decision with which they disagree. Currently, suspensions of more than six months and disbarments must be briefed and argued before the court though the parties can stipulate that the trial panel opinion is acceptable and the discipline imposed is appropriate under BR 10.4(b). If the parties do not so stipulate, the full appellate review process takes a significant amount of time, not to speak of resources. The task force believes this mandatory review process should be eliminated. The State Professional Responsibility Board is in the best position to protect the interests of the profession and the state bar in deciding whether to seek Supreme Court review of a trial panel decision by the state bar.
PROPOSAL # 11:
Encourage Greater Use of the Probation Sanction Authorized by BR 6.2(a)
The task force recommends that the BOG request the Disciplinary Board and the Supreme Court to consider probation with conditions pursuant to BR 6.2 as an alternative to suspension in appropriate circumstances.
The task force discussed the issue of alternative sanctions for attorneys in the case of suspensions. The task force heard testimony about the disparate impact sanctions has on some attorneys, particularly those who are sole practitioners. While the task force did not recommend specific types of alternative sanctions, it concluded that an alternative to suspension would serve to help the attorney being disciplined develop systems to avoid further discipline and to change bad patterns of practice. In addition, an alternative would serve to sanction the attorney while allowing the attorney to remain in practice. Some of the ideas discussed were pro bono activity, especially in conjunction with legal aid programs, and intervention through the office management assistance program of the PLF.
PROPOSAL # 12:
Definition of Disciplinary Complaint
The task force recommends that the Oregon State Bar change its definition of what constitutes a disciplinary complaint. At the very least, inquiries that disciplinary counsel determines do not raise an arguable ethics violation should not be recorded as disciplinary complaints.
DISCIPLINARY SYSTEM TASK FORCE
Minority Report #1
I join in all of the findings and recommendations in the Task Force’s report. I write separately only because I believe the report does not say enough about the issue whether the disciplinary process is 'biased' against solo practioners and lawyers in small firms.
This is not a trifling matter. As noted in the majority report, one of the two 'most consistent complaints' by lawyers to the Task Force is that the disciplinary process is somehow biased toward large firm lawyers – or 'at least is perceived to be.' See Task Force Report on Page 3. Unfortunately, on this important, perception-versus-reality question, the Task Force goes no farther than to 'question whether an objective assessment [is] possible,' id., meaning, apparently, that there is no statistical evidence of bias against small firm lawyers. For that reason, the report suggests that the Bar 'put aside' that issue, 'at least for the time being.' Id.
I agree that the 'objective' evidence is inconclusive. The Bar has not kept records of ethics complaints by firm size and, therefore, it is not possible to determine from Bar data alone whether the number of complaints lodged against small firm lawyers, the number of those complaints that result in prosecution, or the number of those prosecutions that result in discipline are disproportionate to the number of small firm lawyers in the general population of attorneys. Conclusions based on that data are 'statistically unreliable,' according to memorandum from Bar staff summarizing the data. Disciplinary System Database Analysis at 3.
A majority of the Task Force are content simply to note the lack of reliable statistics, and then move on. I would not quit so soon. Instead, I would go on to report that, statistics aside, we received no other credible evidence of bias against small firm lawyers or solo practitioners. To be sure, we heard complaints of alleged bias. But those allegations were not supported by any non-anecdotal evidence. No one has identified even one instance of disparate treatment of two lawyers who were similarly situated in all respects except for the sizes of the firms in which they practice.
I would also report that no one has offered to us a plausible explanation for why there might be bias in the system. In my view, that is a glaring omission which is worthy of mention, not only because we solicited explanations, but also because the suggestion of bias seems, on its face, rather implausible. The disciplinary process is, for the most part, run by volunteer lawyers. Volunteers serve on the Local Professional Responsibility Committees, which investigate ethical complaints; the State Professional Responsibility Board, which decides whether to prosecute; and the Disciplinary Panels, which hear the complaints. These boards and panels are not composed disproportionately of 'big firm' lawyers. Solo practitioners and small firm lawyers appear to be adequately represented. And they are joined at all levels by public members, who don’t belong to firms of any size. That being so, there is no reason to suppose that any of the decision-makers in the disciplinary process have it in for lawyers who practice by themselves or with just a few others. Likewise, there is no reason to suppose that the other key players in the disciplinary process – the Bar’s disciplinary counsel and the Supreme Court justices – favor large-firm lawyers over small-firm ones.
There is, indeed, a 'perception' among some Bar members that the disciplinary process is not fair to small firm lawyers and solo practitioners. But that appears to be a misperception, based on what the Task Force saw and heard during its year-long study of the issue. And I think our report should say so, in just so many words, instead of putting the matter 'aside' for yet another task force. The first step in correcting a misperception is to identify it as such.
At the end of the day, no Oregon lawyer should be left still wondering whether the disciplinary process is fair to all practitioners regardless of firm size. The lingering impression of unfairness is itself unfair to all those who volunteer their time to make the process work.
Thomas M. Christ , Mary Mertens James, and Bette Worcester join in this minority report
DISCIPLINARY SYSTEM TASK FORCE
Minority Report #2
I join in all of the findings and recommendations in the Task Force’s report, except I believe that Proposal No. 4 (Establish a 'Consumer Assistance Program') is too narrow in concept and will not improve or change the current disciplinary system in any significant way. While I strongly support the creation of a Consumer Assistance Program (CAP), I believe there are better CAP programs than the very modest one which the Task Force is recommending.
Discussion re: Proposal No. 4
Proposal No. 4 is one of several CAP models which the Task Force considered, and essentially duplicates the Ombudsman Pilot Program which the Oregon State Bar funded for six months in 2000. Under this model, jurisdiction for CAP attorneys is limited to matters outside the disciplinary system ('minor problems ... which do not involve an ethics issue') and to phone inquiries, with 'all written inquiries concerning lawyers' still being handled by Disciplinary Counsel. The one change from the pilot program would allow Disciplinary Counsel to refer written inquiries to CAP attorneys for intervention after determination that they do not raise an arguable ethics issue.
I believe that both consumers and lawyers could benefit from having a broader CAP program. Specifically, I advocate having CAP attorneys perform the initial screening of all consumer inquiries received by the Oregon State Bar, including written inquiries. I also advocate having CAP attorneys available to provide early intervention in matters beyond those which are strictly non-ethics inquiries, including situations where there is an arguable ethics violation which is minor or technical, and situations which could evolve into ethics violations without early intervention.
Alternative Proposal No. 4
I propose the following alternative to Proposal No. 4 in the Task Force Report:
Establishment of Consumer Assistance Program
The Oregon State Bar shall establish a Consumer Assistance Program (CAP) for the purpose of screening all consumer inquiries received by the Oregon State Bar. CAP attorneys would be separate from Disciplinary Counsel and would be responsible for initial intake and triage of all telephone, letter and in-person inquiries received by the Oregon State Bar. For inquiries, which after review do not raise an actual ethics issue, CAP attorneys would also be available for intervention in appropriate cases and would attempt to resolve the inquiry through informal mediation or other avenues outside the formal disciplinary system.
Discussion re: Alternative Proposal No. 4
Under Alternative Proposal No. 4, CAP attorneys would take care of all initial consumer contacts with the OSB, with a goal of resolving as many of them as possible without a formal complaint being filed. This would aid both the public and attorneys. Members of the public would have a voice and could perhaps get some resolution of their concerns, instead of just being told that they can file an ethics complaint, which will then be accepted or rejected. CAP attorneys would screen consumer inquiries and work with those people who need help getting a file, getting their phone calls returned, getting clarification of attorney/client matters, or simply understanding their options. For attorneys, CAP intervention could alert them to potential problems and prevent situations between clients and attorneys from escalating into larger problems. This type of CAP program would also address issues of delay in the present system by allowing Disciplinary Counsel to focus on matters which are serious enough to justify a disciplinary complaint.
With more screening and assistance at the front end, it would be expected that fewer complaints would become disciplinary matters and consumers would generally be more satisfied with the OSB and the legal profession. The internal benefit would be that Disciplinary Counsel staff, which currently screens all written complaints, would be able to spend more of its time on matters of consequence. This program would require an increase in staffing and/or a transfer of staffing from Disciplinary Counsel.
History of Alternative Proposal No. 4
Alternative Proposal No. 4 is attached to this Minority Report. It represents the recommendation adopted by the unanimous vote of all members present at the committee meeting held on June 22, 2002. Alternative Proposal No. 4 was included in the draft Report reviewed by the Committee on July 13, 2002. The Proposal No. 4 included in the final report was adopted by a vote of 5 to 4, with two members absent.
Linda K. Eyerman, Marc D. Blackman, Kelly M. Doyle, Mary Merten James, and Judith H. Uherbelau join in this minority report
Creation of Bar Disciplinary Process Study
Whereas, the House of Delegates of the Oregon State Bar has the duty in annual session to consider and debate matters of concern to the membership of the Oregon State Bar and to provide learned advice and direction on matters concerning the practice of law in the State of Oregon;
Whereas, the House of Delegates of the Oregon State Bar believes that there exists substantial confusion relating to the purposes, priorities, processes, and allocation of authority in the present system of Bar Discipline; be it therefore
Resolved, that the House of Delegates requests and instructs the Board of Governors of the Oregon State Bar:
This study shall provide the input from the members of the Oregon State Bar and other interested parties within each region of the Oregon State Bar and if possible, and with the assistance of local county bar associations, within each county of the State of Oregon.
This study shall be broad in scope but will specifically look at the following matters:
Since 1987 the Oregon State Bar has been involved in nine separate reviews of the Disciplinary process:
During the same time, there have been increased calls for more bar staff (to handle the cases), questions concerning the use of volunteer bar members in the disciplinary process, requests for more stringent rules related to cooperation with Bar ethical advice from the Oregon State Bar, and major case (Gatti), which has lead to the creation of special task forces and an emergency meeting of the House of Delegates. Despite all of these activities, the disciplinary process remains unknown by the general Bar membership.
There are a multitude of questions ranging from the purposes and limits of the disciplinary process, the certainty of the ethical rules, and the process of development of the rules, to the involvement of Bar members in the basic honor of our profession.
This Resolution would require that the Board of Governors create a full review process, hopefully including local Bar Associations and Professional Legal Groups, to study the disciplinary process and forward a report to the House of Delegates for discussion and the adoption of possible recommendations.
It is time for the House of Delegates to review a full study of Bar discipline and bring the special learning and skills of our profession to debating and then confirming or creating an appropriate, fair, and speedy system. It is time to ensure a just system to guarantee our honor as attorneys and thereby protect the public that has given us special status.
Presenter: James D. Hennings
OSB Disciplinary Task Force Questionnaire
This survey reflects a total of 495 responses from December 12, 2001 to January 10, 2002.
1. Within the last five years, have you served as a bar
volunteer for any of the following:
|SPRB (State Professional Responsibility Board)||1.4%||7/495||
|LPRC (Local Professional Responsibility Committee)||31/495||6.3%||
2. Within the last five years, have you served as defense
counsel for a lawyer named in a complaint to the bar or formally charged
3. Within the last five years, have you been named in
a complaint to the bar?
4. Within the last five years, have you been formally
charged with misconduct?
5. Within the last five years, have you been sanctioned
for a violation of the bars ethics rules?
6. Within the last five years, have you filed an ethics
complaint against another lawyer?
7. Do you believe you have a good understanding of how
the disciplinary process works procedurally?
8. In your view, what is the primary function of the disciplinary
|Protect public from unethical lawyers||123/489||25.2%||
|Punish lawyers for unethical conduct||30/489||6.1%||
|Combination of two||336/489||68.7%||
9. In your opinion, how effective is the existing disciplinary
systemin enforcing the Code of Professional Responsibility?
10. Do you believe the existing disciplinary system provides
a lawyer with a full and fair opportunity to defend against a complaint?
11. Do you believe their is bias in the disciplinary system?
|YES (go to 12)||213/452||47.1%||
|NO (go to 13)||239/452||52.9%||
12. If you answered YES to question 11, on what factors
did you make your decision?
|Subject matter of lawyer's practice||101/495||20.4%||
|Size of lawyers firm||156/495||31.5%||
|Geographic location of lawyer's practice||65/495||13.1%||
|Gender of lawyer||22/495||4.4%||
|Ethnicity of lawyer||15/495||3.0%||
13. Please check as many of the following items as you agree with concerning the disciplinary system:
|The process is too slow||197/495||39.8%||
|The process moves at an appropriate pace for all that is involved||114/495||23.0%||
|The bar spends too much money on the process||61/495||12.3%||
|The bar should commit more money/resources to speed the process||89/495||18.0%||
|The process has an appropriate mix of staff and volunteer participation||89/495||18.0%||
|The process should not rely as much as it does on volunteers||83/495||16.8%||
|The process is more adversarial than it needs to be||152/495||30.7%||
|The process is not more adversarial than it needs to be||89/495||18.0%||
|The bar should not keep as public records dismissed complaints||241/495||48.7%||
|The bar should pursue alternative dispute resolution procedures to resolve minor complaints||324/495||65.5%||
|The bar should establish an ombudsman-type program to help lawyers and clients resolve disagreements separate and aprt from its discipline process||293/495||59.2%||
|The bar should enact a rule that takes into account when disciplining a lawyer whether that lawyer relied on an ethics opinion provided by the bar||364/495||73.5%||
|The existing disciplinary process is fine. Minor tweaks may be needed, but the system does not need a major overhaul||111/495||22.4%||
1. The bias about which the Task Force heard
complaints did not involve race, sex, nationality, or similar 'individual
characteristics.' Rather, it involved practice areas and settings.
A recurrent complaint heard by the Task Force is that the current
system disproportionately focuses on sole practitioners, small town
practitioners, and those practicing criminal and domestic relations
2. Judicial Rule 6: Advisory Opinions on Judicial
Conduct; Consideration Given in Judicial Conduct Proceedings
JR 6-101 The Judicial Conduct Committee of the Oregon
Judicial Conference may give persons subject to this code advice
in the form of informal oral advisory opinions or issue formal written
advisory opinions, or both, on questions under this code. The committee
(A) Maintain a log of its informal opinions and copies of its formal opinions, which the chair of the committee shall make available to the Oregon Supreme Court or the Oregon Commission on Judicial Fitness and Disability on request.
(B) Disseminate its advisory opinions or opinion logs or both as it determines appropriate to its role in giving advice on judicial ethics and educating judges about this code.
JR 6-102 (A) In considering alleged violations of this
code, the Oregon Supreme Court or the Oregon Commission on Judicial
Fitness and Disability may consider any judge's good faith effort
to comply with a formal written opinion issued under JR 6-101 or a
requesting judge's good faith effort to comply with an informal oral
opinion given under JR 6-101 as:
(1) A showing of the judge's good faith effort to comply with this code; and
(2) A basis for mitigation of any sanction that may be imposed or recommended if the judge is found to be in violation of this code.
(B) This rule is not intended to preclude the Oregon Supreme Court or the Oregon Commission on Judicial Fitness and Disability from considering any other evidence of good faith or basis for mitigation.
3. BR 2.5(h)(2) provides: 'Notwithstanding
a determination by the SPRB that probable cause exists to believe
misconduct has occurred, the SPRB shall have the discretion to direct
that no further action on a complaint or allegation of misconduct
be taken by the Bar if one or more of the following circumstances
exist: the attorney is no longer an active member of the Bar or is
not engaged in the practice of law, and is required under BR 8.1 to
demonstrate good moral character and general fitness to practice law
before resuming active membership status or the practice of law in
Oregon; other disciplinary proceedings are pending that are likely
to result in the attorney's disbarment; other disciplinary charges
are authorized or pending and the anticipated sanction, should the
Bar prevail on those charges, is not likely to be affected by a guilty
finding in the new matter or on an additional charge; or formal disciplinary
proceedings are impractical in light of the circumstances or the likely
outcome of the proceedings. An exercise of discretion under this rule
to take no further action on a complaint or allegation of misconduct
shall not preclude further consideration or proceedings by the SPRB
on such complaint or allegation in the future.'
4. These factors may explain why the prior rule
was deemed ineffective. A party may be reluctant to resort to settlement
discussions before the case is ready for hearing, and frequently,
matters resolve 'on the court house steps,' literally. Since
a member of the Disciplinary Board was assigned to 'preside'
over the pre-hearing conference, but the SPRB would have to agree
to any stipulation regarding discipline, parties may have viewed the
process as a futile or pointless effort when the SPRB was the entity
responsible for initiating the formal complaint.