A PERSONAL JOURNEY THROUGH THE OREGON STATE BAR'S DISCIPLINARY SYSTEM -- I had been gone from Oregon for ten years, but was happy to return. Serendipity intervened and an old friend offered me a job at his local law firm before my employment quest even began. At the same time, I began reading the advance sheets and stumbled upon a strange disciplinary case published there. It seems a lawyer had been found guilty of a minor traffic offense and the major decision to be decided by our stalwart courts was whether the offense constituted "moral turpitude" such that the lawyer should also be found guilty of an ethical lapse. Weird. First, it struck me as double jeopardy. Second, it struck me as asking how many angels dance on the head of a pin.
Then my own personal odyssey began with the fun and good times at the Oregon State Bar. You see, I had been a lawyer for a good long time, but had never practiced law on the ground. I had been counsel to several insurance companies which took me across the United States and now I was returning to the fold. My good buddy nurtured my rough beginnings in the private practice of law and all was well. Until that first disciplinary complaint came rolling in. For the fourteen years in corporate life, I had been called a good many things, but never unethical. My record was fourteen years of spotlessness in the ethical realm. This was all to change when I became a lonely private practitioner of the law in Oregon. Oh, how it was to change. My ethics haven't changed, but subjugation to a Bar that enjoys retaliation is what is of moment.
Let me fast forward ten years. About 1997, after about ten years in private practice, I was starting to get weary of these eight month investigations by Mr. Sapiro, our good disciplinary counsel at the Oregon State Bar of "ethical" complaints either by my clients who didn't want to pay their attorney fee bill or by opposing lawyers as part of their advocacy strategy. So, one day I asked the Bar to assemble all these spurious bar complaint files and I examined each one to determine what exactly took an average of eight months to determine no ethical violation had occurred. What I found was disconcerting. There were no time constraints on the Bar's disciplinary department to do anything!!
The final straw occurred in 2001. Up until that time I had no formal (meaning that the Bar actually files 'criminal' charges against you) complaints against me. Mr. Sapiro's department had dismissed two ethical overtures by my opposition in ongoing litigation, but the third would be investigated by him. After a three year 'investigation' that went nowhere and was assigned to two outside investigators, I had had it. I filed an ethical complaint against Mr. Sapiro for neglect.
Well, I don't have to tell you the "rest of the story" do I? Since 2001 Mr. Sapiro has filed eight (8), that is right, count them......eight more formal disciplinary complaints against me and last year the Oregon Supreme Court, without reading the record, suspended me from the practice of law for an indeterminate time period until I become moral enough to sit on the group W bench. The shower continues.
Here is my message. Our illustrious leaders don't care. The media doesn't care. (One reporter from the Oregonian told me the public would rather read about Trimet than our justice system). Our fellow lawyers don't care (all the while opening up their Bulletin to the disciplinary pages then tossing that publication aside). So, we must do it ourselves. We must organize. We must protest. We must do something about our Bar's Disciplinary Department. Nobody cares but us.
THE DUKE RAPE CASE AND OUR OWN MR. NIFONG -- The prosecutor. Justice Robert H. Jackson of the United States Supreme Court, had the unique experience of also serving as a prosecutor of Nazi war criminals at Nuremberg in Germany after World War II. He wrote about the temptations of any prosecutor. Commenting on a prosecutor's vast powers and immense discretion, and the dangers of abusing them -- specifically by not "discovering the commission of a crime and then looking for the man who has committed it," but "picking the man" and then "putting investigators to work, to pin some offense on him." Any prosecutor, Jackson said, "stands a fair chance of finding at least a technical violation of some act on the part of almost anyone." Renata Adler, Irreparable Harm, Melville House Publishing (2004) at page 40.
Picture Enron with it's own private police force and it's own private prosecutor. Then picture Kenneth Lay in charge of that full staff of prosecutors and investigators with authority to investigate the Board of Directors in their private business lives and even their own private sexual escapades. Further, picture a team of Enron's investigators whose only mission is to uncover the misdeeds of this Directoral group in their other professional lives apart from their duties at Enron, if, for example, they questioned Mr. Lay's decision to create an illegal offshore business to launder drug money. Imagine that one of the Board of Directors, lets call him Sam, was cheeky enough to formally question one of Mr. Lay's management decisions to purchase a relative's property, at great expense, for Enron. Also assume Enron had no use for this property. Moreover, assume that Mr. Lay was owed money by this relative and would get paid if someone bought the relative's land. Assume further that "Enron Law" gave Mr. Lay the authority to assign a special investigator to Sam's private business matters and formally charge Sam with crimes under "Enron Law" in those private business matters. Suppose then that Enron's private investigators and police force along with Enron's prosecutor conspired to charge Sam with high crimes and misdemeanors in his private business matters under "Enron Law" in order to remove this troublesome Board member from Enron's Board of Directors. Consider further that Mr. Lay had the power to communicate with the other Board of Directors at Enron about Sam's alleged crimes, but there was an Enron Board rule that Sam could not discuss his situation on these private business matter charges with those same Enron Board of Director's members.
But there was a problem. The existing Enron rules clearly stated that the only way that Sam could be removed from Enron's Board of Directors was by an impeachment vote by Enron's shareholders. Mr. Lay knew that wasn't going to happen because Sam had been elected to Enron's Board of Directors by a solid majority of shareholders. Mr. Lay then set out upon a diabolical scheme. Through those back channels of communications with the rest of the Board of Directors, Mr. Lay secretly advised them of Sam's alleged violations in his private business that had been uncovered by Enron's crack team of police, private investigators with the aid and support of Enron's prosecutors. Only Sam didn't know of these conversations and was concentrating on the welfare of Enron. Through this back channel, Mr. Lay successfully encouraged Enron's Board of Director's to come up with a 'new rule'. This new rule stated that if any of the Enron's Board of Directors was under investigation for private business matters by Enron's secret police and so charged by Enron's prosecutors, that particular Board of Directors member could no longer serve on Enron's Board of Directors. Thusly, Sam was removed from Enron's Board of Governors, er, I mean Board of Directors and silenced for all practical purposes on other Enron misdeeds.
Then open your eyes and you will see the Oregon State Bar and it's system.
THE COMPONENTS -- Initially, there are three sources of written guidance to the disciplinary system at the Oregon State Bar. First, there is the statutory authority which is found in ORS 9.005 and specifically 9.527 et seq. Second, there are the 'rules' (Oregon Rules of Professional Conduct and the Rules of Procedure). Finally, there are the Oregon State Bar Bylaws the existence of which are known to few. Each defines and outlines the bodies that control the process. Those bodies are: (1) Client Assistance Office which reports to the Bar's General Counsel. (2) Disciplinary Counsel which reports to the Executive Director. (3) State Professional Responsibility Board which has as it's attorney, the Disciplinary Counsel (See Bylaw 18.1) (4) The Disciplinary Board (trial panels) which are supposed to be appointed by the Oregon Supreme Court, but are actually appointed by the Board of Governors with help from the Disciplinary Counsel. It is not well known that Jeff Sapiro sits in on the meetings where the trial panels are chosen.
HOW THE PROCESS IS SKEWED -- The Disciplinary Counsel's office has many resources and few cases. This allows the 15 lawyers in the office to devote their time to the an individual caseload of about 15 cases. In addition, the Bar has a paid staff of investigators. Further, the Oregon State Bar has a staff of volunteer outside counsel (mostly downtown law firms) who provide legal expertise unavailable to the accused lawyer. Finally, the Bylaws state that the accused lawyer may not communicate with anyone about their case who may be connected to the Bar other than the lawyers in the Disciplinary Counsel's office or the appointed counsel for the Bar. (Bylaw 18.107) The Oregon State Bar Staff and Members of the Board of Governors, on the other hand may discuss an accused's case with anyone they want to including judges. Recently, Karen Garst (Executive Director) and William Carter (President of the Bar) discussed an individual's disciplinary case with members of the Professionalism Commission, naming the accused and having that discussion without the knowledge of the accused's lawyer. In another case Mr. Carter saw fit to contact the Chief Justice of the Supreme Court of Oregon about a pending disciplinary case without informing the accused that such a contact had taken place. There is regular contact by the General Counsel's office and the Disciplinary Counsel's office with the Oregon Supreme Court members from which the regular OSB membership are excluded. There are sanctions if the OSB member does not respond to the Disciplinary Counsel's office, but no sanctions if the Disciplinary Counsel's office does not respond to the OSB member. Timelines are strictly construed against the OSB member, but Bar Rule 11.1 gives the Bar and the surrogates a free pass if they miss a deadline.
LOOK FOR FURTHER INFORMATION ABOUT YOUR OREGON STATE BAR'S DISCIPLINARY PROCESS HERE ON A REGULAR BASIS.
IF YOU HAVE A TALE OF THE OREGON STATE BAR DISCIPLINARY OFFICE OR ANY ISSUES YOU HAVE ABOUT DISCIPLINE IN OREGON PLEASE POST YOUR INFORMATION HERE OR EMAIL THE MATTER TO LAUREN PAULSON.
Jeff Sapiro joined the Oregon State Bar (OSB) in 1981 and became Disciplinary Counsel in 1988. Karen Garst became Executive Director of the Oregon State Bar several years later. As a result of an ABA Report in 1992, Oregon State Bar staff considered a central intake system including mediation and an ombudsman in 1997. In 1999 Larry Rew, OSB President-Elect and George Riemer, General Counsel of the OSB visited Georgia's consumer assistance program (CAP). In 2000 the Bar embarked on a six month CAP pilot program which demonstrated success with the clients and membership. It was noted that "...many problems are really just misunderstandings based on failures of communications". (Syvia Stevens memo 8/14/01)
Independantly of OSB leadership, the House of Delegates (HOD) voted in September of 2001 to take a fresh look at the entire OSB disciplinary system. OSB leadership was against this HOD position. The Disciplinary Task Force (DTF) was formed as a result of the HOD action and rendered their report in 2002 recommending ameliorative changes including diversion, mediation and the formation of a Client Assistance Office (CAO) . The DTF also recommended that bias and delay in the disciplinary system be further reviewed by the Bar which has never happened. The CAO began in 2003. As of 2005 no cases have been mediated by OSB's Disciplinary Counsel even though mediation was part of the original proposal in 1997 and formally adopted in 2003.
Mark Zusman, former Chair of the Disciplinary Board (trial panels) made a formal recommendation to the OSB Board of Governors (BOG) in 2006 that the disciplinary system in Oregon "...be fundamentally reoriented from a crime-and-punishment model..." to one based on education and rehabilitation. BOG has not acted on that proposal.