BULLETINS FROM ALOHA

BULLETINS FROM ALOHA


A. Weekly Bulletins (Click on Link)

1. Welcome To A New Blog Site for Oregon Lawyers(2/4/07)
2. Opening Page -- Purpose of This Blog Site (2/4/07)
3. Update -- The Oregon State Bar's Confused Organization( 2/6/07)
4. Feedback and Leadership at the Oregon State Bar(3/28/07)
5. Packing the Court -- The Oregon State Bar is an Oligarchy(4/5/07)
6. A Monumental Failure of Leadership(4/28/07)
7. Our Judicial Emperors Have No Clothes(5/22/07)
8. Oregon's Court of Appeals Has No Clothes(5/29/07)
9. Lawyer Advertising -- Not!(6/4/07)
10. Attorneys With Kind Hearts(6/10/07)
11. To Tell You The Truth(6/19/07)
12. Judicial Emperors With Clothes of Gold(6/23/07)
13. The "F" Word(6/25/07)
14. The Strange Case of Judge Michael McElligott(6/29/07)
15. A Simple Proposal for Judicial Accountability(7/11/07)
16. Legal Malpractice Got Me To Mt. Hood(7/19/07)
17. How Much Would You Spend to Shut Me Up?(7/31/07)
18. Erased -- By the Oregon State Bar(8/13/07)
19. They Rule, But Do Judges Read What You Send Them?(8/22/07)
20. Finally, A Solution to Divorce in America(8/27/07)
21. Silence is an Accomplice to Injustice(9/4/07)
22. Oregon Lawyers and the Oregon Media(9/16/07)
23. The Oregon Federal Court -- Evaluated(9/24/07)
24. The Oregon State Bar House of Delegates Meeting(10/3/07)
25. Oregon State Bar's Member Services--The Black Hole(10/5/07)
26. Whoever Has the Biggest Megaphone Wins(10/5/07)
27. Reality Overcomes Hope at the Oregon State Bar(10/10/07)
28. Common Law Does Not Make Common Sense(1/1/08)
29. Everybody is Looking the Wrong Way for Legal Help(1/9/08)
30. Does the Oregon State Bar Make Common Sense?(1/10/08)
31. You Are Not Entitled to a Jury Trial(1/23/08)
32. Roadmap To Improve Our Legal System(1/28/08)
33. Minority ‘Rites' of Passage in Oregon(2/1/08)
34. Our Legal System Has It Exactly Backwards(2/13/08)
35. In Defense of Your Local Lawyer(2/19/08)
36. One Year Anniversary of This Blog(2/22/08)
37. A ‘Subprime' Odyssey(2/26/08)
38. Rogue's Gallery is Too Good For Some(3/6/08)
39. An Open Letter to Justice Sandra Day O'Connor(3/13/08)
40. So You Want To Be A Blogger(3/19/08)
41. The Death of Ivan Ilych(4/1/08)
42. The New Oregon State Bar Center(4/8/08)
43. Theories for Legal Improvement -- And For Revolution(4/16/08)
44. Judicial Elections -- and Judicial Evaluations(4/23/08)
45. The Real Estate Auction -- The New Kid on The Block(4/30/08)
46. The Good Lawyers Do!(5/7/08)
47. The Power at The Oregon State Bar -- Practical Magic(5/14/08)
48. Report Card on The Oregon Supreme Court(6/10/08)
49. An Open Letter to Justice Ruth Bader Ginsburg.(7/30/08)
50. Structured Settlements(8/7/08)
51. America, The Rule of Law and Torture(8/12/08)
52. Confessions of a Court-Appointed Criminal Defense Attorney(8/29/08)
53. Yes, Virginia The Sky IS Falling(9/19/08)
54. The Master Litigator(9/23/08)
55. A Model Legal System(10/1/08)
56. The Iconoclast(10/4/08)
57. A Model Legal System -- Subpart #1(10/7/08)
58. Legal Reading Lite(10/10/08)
59. A Model Legal System -- (Subpart #2(10/15/08)
60. Legal Reading Lite(10/16/08)
61. Viewer Comments(10/18/08)
62. A Model Legal System -- Subpart #3(10/21/08)
63. Judicial Elections Anyone!(10/27/08)
64. Redistribution Anyone?(10/30/08)

65. A Model Legal System #4 -- The Judiciary

66. A Model Legal System #5 -- The Money

67. So, I Inquired Further

68. A Model Legal System #6 -- Bar Associations

69. Reuben Lenske -- On Attorney Fees

70. Civil Rights -- Before

71. Something's 'Askew' at the Bar

72. Civil Rights -- After

73.  A Cry From The Wilderness

74.  Bar Board of Director's Meeting (2008)

75.  Lawyer Discipline In Oregon Is Unconstitutional

76.  Landlord/Tenant Litigation in Oregon

77.  Oregon Courts Close Again (2009)

78.  Oregon Secret Law Societies

79.  Downtown Law Firms and Money

Posted on Friday, February 27, 2009 at 07:55AM by LAUREN PAULSON | Post a Comment

LAWYER DISCIPLINE IN OREGON ISUNCONSTITUTIONAL

OREGON LAWYER DISCIPLINARY COURTS ARE UNCONSTITUTIONAL, ILLEGAL AND UNFAIR


The Spanish Inquisition lasted almost four hundred (400) years. The Inquisition was Ferdinand and Isabella's way of maintaining Catholicism as the primary religion of Europe. It was an unbelievable tragedy for the innocent sufferers. This article explores twenty (20) ways in which the Oregon State Bar lawyer disciplinary process compares with the ecclesiastical courts of the Spanish Inquisition which lasted for four centuries (1478 to 1834) because good people did nothing.

Quick -- What is the difference between substantive due process and procedural due process? Due process is completely missing in Oregon lawyer disciplinary courts as we shall see.

Substantive Due Process is largely derived from Justice Stephen Field's dissent in the 1873 Slaughter House cases. Substantive Due Process holds that there are certain inalienable individual liberties that may not be unreasonably taken away by government. The right to earn a living is one of these rights. Procedural due process has to do with a fair process, but does not involve deprivations by government. Substantive due process says there are certain deprivations that are not permitted by unreasonable governmental actions. The government then cannot deprive a person from earning a living in a lawful manner without other restraint which equally affects all other persons.

Well, the Oregon lawyer disciplinary courts do not provide Oregon lawyers with a reasonably fair process before denying them the right to earn a living. Some of what follows should shock and amaze you. Some, you already know about, but you may have failed to really cogitate about the elements of irrationality and unfairness in the particular component of the process. Jeff Sapiro has, through stealth, fixed his system in ways that are simply unconscionable and certainly illegal under the constitutions of Oregon and the United States.

TWENTY VIOLATIONS OF DUE PROCESS BY OREGON'S LAWYER DISCIPLINARY SYSTEM: (Or How Many Ways Do I Love Thee--Not!)

1. The Rule of Law -- Oregon disciplinary cases do not apply the rule of law. Indeed, trial panel opinions and the Oregon Supreme Court written opinions do not regularly cite case law nor substantive precedent except in the canned citations in the ‘sanction' portions at the end of the written opinions.

2. Burden of Proof -- Since lawyer disciplinary cases amount to a criminal trial, even though they are technically sui generis, the Oregon State Bar must prove their case by "clear and convincing" evidence. But, both the Oregon disciplinary courts and the Oregon Supreme Court simply state, without analysis, that the case met this burden. How? Why? Without an analysis of the standard and how the facts meet that standard under specific precedent, the burden of proof requirement is simply an empty vessel.

3. Judges -- By statute, the Oregon Supreme Court is required to appoint the judges for Oregon's lawyer disciplinary courts. ORS 9.534. They don't. The Oregon State Bar Board of Governor's Appointments Committee picks the disciplinary judges, not the Oregon Supreme Court. But, it gets worse.

4. Judges -- Jeff Sapiro, Oregon's Disciplinary Counsel, improperly helps pick the judges. He attends the Oregon State Bar Board of Governor's Appointments Committee meetings and weighs in on his opinion of who should be chosen. No members of the Oregon State Bar are advised of this travesty of justice. If the prosecutor is able to help pick the judges, the lawyers should know about it and be able to participate as well. There is no court system in the civilized world that allows the prosecutor to pick the judges of the cases he is going to prosecute.

5. Appeal Penalty -- By an egregious Bar Rule, the lawyer who appeals a disciplinary court decision can be even more harshly sanctioned. This rule states that when a lawyer appeals a trial panel opinion, the Bar automatically appeals as well, by virtue of the lawyer's appeal. In real court, the non appealing party does not automatically get a second bite at the apple as the Bar does in disciplinary appeals unless they cross appeal. The Oregon Supreme Court regularly and happily punishes Oregon lawyers even more severely on a lawyer's appeal of a disciplinary trial panel ruling.

6. Indigent Defense Counsel -- Disciplinary prosecutions exact a terrible price on lawyers and particularly lawyers in small practice situations. Often lawyers become indigent over the process or their financial problems led to the disciplinary circumstance in the first place. Are they entitled to court appointed counsel in these dire circumstances? Just the opposite. The Oregon State Bar maintains a program of about 80 volunteer lawyers made up mostly of sycophant downtown lawyers who represent the Bar free of charge. The prosecuted lawyer does not get free legal help. The Bar does. Oregon's disciplinary department has a budget of almost $2 million ‘dues' dollars. This turns the whole concept of the right to court-appointed counsel on its head.

7. Discovery -- The Bar may and does refuse all discovery requests by the lawyer without sanction.

8. Retaliation -- Statistically, the Bar wins about 97% of their prosecutions. In the rare event that a lawyer wins, statistically, the Bar prosecutes that same lawyer a second time on new charges with a conviction. During the 2002 Disciplinary Task Force forty seven (47) lawyers wrote letters to the Bar pointing out specific instances of retaliation by Oregon's Disciplinary Counsel. No one at the Bar nor the Oregon Supreme Court investigated these charges. See below at #15

9. Bias -- In a recent survey, a permutation of 6,500 (out of 13,000) Oregon lawyers feel there is bias in the State of Oregon lawyer disciplinary process. Nobody has investigated why.

10. Gender Bias -- Oregon's Disciplinary Department is the largest department at the Oregon State Bar. Of the fifteen (15) employees of Oregon's disciplinary department (sans Mr. Sapiro), all are women. Of the 141 Oregon lawyers disciplined in 2007 and 2008, 120 of them were men, 21 were women. (There are about 4,000 women lawyers in Oregon and about 8,000 men)

11. Misjoinder -- In criminal court a prosecutor may only prosecute multiple cases against a defendant at the same time is when they have a common nexus. The criteria for nexus is that only those cases that have some sort of connection may be prosecuted against a person at the same time. The Oregon State Bar may throw as much mud against the wall at any one Oregon lawyer at the same time, as they want, by rule, even if there is no connection between the cases at all.

12. Prior ‘Bad' Acts -- Prior bad acts may not be brought up in criminal matters unless they show a commonality of scheme. In Oregon disciplinary courts, the prosecutor can discuss ALL of an Oregon lawyer's prior bad acts, real or imagined, in the instant proceeding.

13. Right to Remedy -- Oregon's constitution (Art 1, §10) provides that in all cases a citizen has a right to a remedy by due course of the law in the case of injury to reputation. The Oregon State Bar disciplinary counsel lie. There is no remedy.

14. Alternate Dispute Resolution -- In accordance with a 2001 House of Delegates resolution, the Disciplinary Task Force took a sweeping new look at Oregon's disciplinary department and decided on sweeping new changes for the good of the system in 2002. These changes were approved by the Oregon Supreme Court and became effective in 2003. Unfortunately, Mr. Sapiro does not believe in anything but punishment. Consequently, the Bar Rule changes permitting mediation and diversion are not used by Oregon's disciplinary department, even now, six years later.

15. Prosecutorial Misconduct -- By an incredible act of legerdemain, Mr. Sapiro has fashioned absolute immunity for himself, free of any scrutiny. Here is how it works. The only entity in Oregon that may investigate or indict Oregon's disciplinary counsel is the State Professional Responsibility Board (SPRB) Chairman. [Bar Rule 2.6(g)] The SPRB is Oregon's disciplinary grand jury. The prosecutor and the grand jury work closely together on all prosecutions, per force.

Well, guess what? By rule, [Board Bylaw 18.100], Jeff Sapiro is also the designated attorney for the SPRB. Thus, the only entity that can investigate bad acts of Oregon's disciplinary attorney is...........the client!

16. De Novo Review -- By statute, the Oregon Supreme Court is required to review any and all Oregon lawyer disciplinary cases de novo. This means they must read the entire record. They don't. They don't even get a copy of the entire record. (Come on, Oregon Supreme Court, this is an open challenge to prove me wrong!)

17. Irregular Proceedings -- There are ‘secret' meetings in the Oregon legal profession. It has been documented that the leadership of the Oregon State Bar secretly meets with the Chief Justice of the Oregon Supreme Court on lawyer disciplinary matters and nobody voluntarily informs the lawyer in question. It has been documented that members of Bar leadership meets with the Professionalism Commission on individual lawyer disciplinary matters. The problem is that trial panel members and Oregon judges are at these meetings, but the individual lawyer is not.

18. Unconstitutional Delay -- The Oregon disciplinary counsel has no time constraints on how long it takes to prosecute a lawyer. This was one of the main ‘tasks' of the Disciplinary Task Force and they shirked their duty. The entire Oregon State Bar has ignored their own House of Delegates vote in 2001 which required that the Oregon State Bar Board of Governors study "The appropriate speed of the disciplinary process". This has never been done. Therefore, the Oregon disciplinary department takes their own sweet time. Even in criminal courts the defendant has a constitutional right to a speedy trial under the Sixth Amendment. Justice delayed is justice denied. It is incredibly harsh on Oregon lawyers to have a disciplinary matter hanging over their heads and yet nobody cares enough to do anything about it.

19. The Constitutional Right to Confront Witnesses -- The Oregon disciplinary courts do not require the personal appearance of witnesses against an Oregon lawyer at trial. Thus, the most basic of our constitutional rights under the Sixth Amendment, ie., the right to confront and cross examine witnesses against them are lost to Oregon lawyers.

20. Convictions -- The rules require three judges. The Oregon disciplinary department allows decisions with less than that. No criminal conviction would stand with a vote by only two thirds of a jury panel. Oregon allows conviction with only two of three judges.

WHERE DO WE GO FROM HERE

The rules of procedure in lawyer disciplinary matters in Oregon are a witches brew of civil procedure, criminal concepts and made-up rules that benefit only the prosecutor. As was said about the Inquisition:

"....many true and faithful Christians, because of the testimony of enemies, rivals, slaves and other low people--and still less appropriate--without tests of any kind, have been locked up in secular prisons, tortured and condemned like relapsed heretics, deprived of their goods and properties, and given over to the secular arm to be executed, at great danger to their souls, giving a pernicious example and causing scandal to many."

Karen Garst is gone. George Riemer is gone. It is now time to get Jeff Sapiro, Disciplinary Counsel for the Oregon State Bar,---- gone.

Then the Oregon State Bar Board of Governors should reconvene a Disciplinary Task Force II to finish the job voted on by Oregon's House of Delegates in 2001 and commenced in 2002. There have been a large number of the true and the faithful that have been needlessly hanged since then. The integrity of the Oregon State Bar demands that the job Oregon lawyers voted for eight years ago be finished.

Posted on Tuesday, February 17, 2009 at 04:54PM by LAUREN PAULSON | 1 Comment

WOMANPOWER

How many women SENATORS served in the last U.S. Congress (the 109th, 2007-2008)? Six? Seven? Ten? Less? There were fourteen (14) women senators in the last United States Congress.

Posted on Monday, February 16, 2009 at 04:39PM by LAUREN PAULSON | Post a Comment

CORPORATIONS

"A corporation has no soul to save nor a body to incarcerate."

Posted on Monday, February 16, 2009 at 11:46AM by LAUREN PAULSON | Post a Comment

A LAWYER GOES TO A BOARD OF 'DIRECTORS'MEETING

I did it because I know you didn't have the time as George Carlin used to put it. I dutifully attended the Oregon State Bar Board of Governor's (BOG) meeting in Salem, Oregon on Friday, February 6, 2009 and you didn't "... because I had the time". Here is the Good, the Bad and the Ugly about that meeting in Salem:

• The Good - - The Bar has new leadership at the top.
• The Bad - - There are not enough new (or any) ideas at the Board of Governors.
• The Ugly - - The Oregon State Bar Board of Governors really does nothing for the good of the membership nor the public. (Yes, Bar staff, I know you do a LOT for the good of the order....)

The Good -- It is a new year. We have a new Bar building. We have a new Oregon State Bar Executive Director. We have a (new?) Oregon Bar President. There is reason for optimism.

Although, it goes against the grain for a resident cynic; I must say it -- I was favorably impressed with the new Executive Director of the Oregon State Bar, Teresa Schmid from Arizona, at this meeting. After years of Celene Greene and Karen Garst, the Oregon State Bar deserves a break. I am going to try to interview Ms. Schmid and if I am successful, I will provide a better look at her and her aspirations for the Bar for your future viewing pleasure here.

Then there is Gerry Gaydos, the new? Bar President. He received a full color spread in The Bulletin (the pathetic official Bar publication), so I direct your attention there. I know Gerry, and he is a good man. But, is he one of THEM? I fear he is. There is no way to overstate the sad currents that force a good man like Gerry to be a cheer leader for the oligarchy that is our Bar. That is a good segue to ----

The Bad -- Every year the Board of Governors is supposed to have a turnover of leadership of four BOG members. That has seldom happened in the last eight years. Indeed, Gerry has been on the BOG for the last eight consecutive years. There are other usual suspects who have lingered on and on and just won't go away. Gerry, being the good sycophant had his pals Bill Carter and Mark Comstock as speakers at this BOG meeting. These are insidious, tired old BOG members from six years ago. There are some lawyers in Oregon that love (or are addicted to) the rush of OSB leadership, but unfortunately, they are the wrong people. They are sycophants and parasites who get a thrill (or business) by being close to where the power lies. Ward Greene is such a person. They crowd out new blood where new ideas are missing. The rats keep going down the same rat hole. The same pigs keep occupying the same pig pen.

The Ugly -- The worst thing that occurs at BOG meetings may be the best thing. Nothing. Nothing happens at BOG meetings. It is laughable. With my eager, new BOG puppy-dog eyes, I attended a costly OSB ‘Strategic Planning' series of seminars in 2002-2004 as a BOG member. The idea was that we were supposed to come up with "BREAKTHROUGH (as opposed to incremental) CHANGE" ideas for the good of the cause. It never happened. The effort was diluted into the plain vanilla Member Services Committee instead of being assigned to one of the many 'Futures' committees. Why? Because Ms. Garst did not want change. A 1/30/04 Karen Garst memo reports on all the "Futures" committees we have had over the last twenty years (five of them) going back to the 1990's. Meanwhile, there was a Futures Committee headed up by that ubiquitous Ed Harndon that had been in business for years. In fact, former Bar President Dennis Karnopp recommended in a 10/6/03 memo that the Bar have a permanent Futures Committee.

Bear With Me Here Please!

Guess what. Gerry, in The Bulletin, talks of the importance of the 'Futures' concept again, now in 2009. Cliff Collin's,(another tired commodity), writes in The Bar Bulletin in January, 2009:

"Gaydos, a Eugene lawyer, was a catalyst behind organizing the OSB's Futures Conference, held last September in Bend. Technology was a big focus of that meeting, and he believes one of the OSB's objectives should be to assist its members in preparing for such imminent events as state court electronic filing."

Gimmie a break! The "President's Advisory Committee on Futures Issues" had a report from their "Technology Subcommittee" in 9/20/02 on these identical issues. Mark Comstock, former BOG member, was assigned the task of coordinating state E filing FIVE YEARS ago and reports it is still over a year away! My God, the federal government has had E filing in federal court for about ten years. So, why are we slowly reinventing that wheel?

Teresa Schmid talks of the importance of Long Range Planning. And here is the biggest joke of all. This same Garst 2004 memo mentioned above talks about all the "Long Range Planning Committee's" BOG has had over the years and they all come to nothing.

The Future -- I have carefully reviewed the agenda for BOG for February, 2009. There are reports. There are updates. There is the same old tired stuff that BOG has been doing for twenty years and longer. What is missing? Breakthrough Changes. There is nothing that BOG did over a day and a half of important lawyer's time that amounts to a hill of beans. Each BOG member should ask themselves at the end of each BOG meeting: What significant contribution have I made for the good of the order for this last day and a half that I have spent on behalf of the 13,000 lawyers in Oregon, the public and the legal profession while attending this BOG meeting? If the answer is nothing, then we should change the system. And we should. Now. The answer is either reform or wipe the slate clean and start over. That would be a revolution. Either is needed. Otherwise, we are stuck in the ditch while all other professions are moving forward. The only immutable legislative duty of the Bar is lawyer discipline. All the rest can be changed.

And I will have something to say about Oregon lawyer discipline NEXT!

Posted on Wednesday, February 11, 2009 at 11:22AM by LAUREN PAULSON in LEADERSHIP | Post a Comment Previous 5 Entries | 1 | 2 | 3 | 4 | 5 | Next 5 Entries Copyright © 2007, Lauren Paulson All rights reserved.

B. A Lawyers Black Hole

1. Appetizers -- (2/12/07)
2. Lawyers Who Lie(2/27/07)
3. Why Do We Put Up With It?(4/4/07)
4. Lawyers Who Fall In Love(4/8/07)
5. Runaway Horse(5/5/07)
6. Appreciation Time For Support Staff.(7/1/07)

C. Oregon State Bar Center -- The Boondoggle

1. Bar Center(2/7/07)
2. A Million Here a Million There(2/12/07)
3. The Oregon State Bar Gets a New ‘House"(4/7/08)

D. Discipline

1. Client Assistance Office.(2/19/07)
2. Components of Discipline(2/26/07)
3. Suspicious Minds and Enron(4/17/07)
4. An Unmagical Mystery Tour(5/10/07)

E. The Education of a Member of the Oregon State Bar Board
Of Governors(4/24/07)

Each Article Can Be Found by Going to the Bottom of Each Page then looking for the date at the end of each Article Posted on Saturday, November 1, 2008 at 10:32AM by LAUREN PAULSON in Weekly