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.
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