Resolutions

Whereas, the 1974 Oregon State Bar Annual Meeting approved the creation of an Oregon State Bar Affirmative Action Program (AAP) with the goal of “achieving representation of minority persons in the bar in the same proportion as they are represented in the population of Oregon, while at the same time not lowering the standards for admittance….”; and

Whereas, in 2006 the House of Delegates (HOD) approved a resolution reauthorizing the AAP through December 31, 2021, at the same funding level established for the AAP in 1989 ($30 per active member per year and $15 per active member for less than two years); and

Whereas, in 2011 the bar changed the name of the AAP to the Diversity & Inclusion Department (D&I Department) to account for expanded programs, services, and initiatives, with the goal of increasing diversity and inclusion in Oregon’s bench and bar; and

Whereas, in 2013 the HOD approved a resolution increasing the assessment from $30 to $45 to fund the D&I Department; and

Whereas, since the mid-1970s, the percentage of bar members who identify as racial and ethnic minorities has increased to 8.75% (EOY 2020), while the population of racial and ethnic minorities in Oregon has increased to 24% (2016 Census data); and

Whereas, a diverse and inclusive bar and bench are necessary to improve the quality of legal services and increase access to justice for Oregon’s increasingly diverse population; and

Whereas, a separate fixed assessment for the D&I Department does not account for increases in programming costs year to year; and

Whereas, no other bar program requires reauthorization by the HOD; and

Whereas, the special treatment for D&I Department funding reinforces inequity, rather than working against it; now, therefore, be it

Resolved, that beginning January 1, 2022, funding for the Oregon State Bar Diversity & Inclusion (D&I) Department be continued indefinitely not as a separate assessment, but as a regular part of the base member fee at an amount not less than 9.5% of the overall 2021 base bar membership fee, with future increases to the base bar member fee apportioned at an amount not less than 9.5% for D&I funding.

Financial Impact

Increase D&I Department funding by $6 in 2022, and continue funding indefinitely thereafter at an amount not less than 9.5% of the overall base membership fee.

Presenter:
Kamron Graham, BOG, Region 5

Whereas, the Legal Ethics Committee and the Board of Governors formulated the following amendment to Oregon Rule of Professional Conduct 5.4(a)(4);

Whereas, the House of Delegates must approve any changes in the rules of professional conduct before they are presented to the Oregon Supreme Court for adoption pursuant to ORS 9.490(1); now, therefore, be it

Resolved, that the amendment of Oregon Rule of Professional Conduct 5.4(a)(4) as set forth below is approved and shall be submitted to the Oregon Supreme Court for adoption:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

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(4) A lawyer may share [court-awarded] legal fees awarded by a tribunal with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter;

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Financial Impact

None.

Presenter:
Rob Milesnick, BOG, Region 8

Whereas, the Board of Governors formulated the following amendment to Oregon Rule of Professional Conduct 5.4(a)(5);

Whereas, the House of Delegates must approve any changes in the rules of professional conduct before they are presented to the Oregon Supreme Court for adoption pursuant to ORS 9.490(1); now, therefore, be it

Resolved, that the amendment of Oregon Rule of Professional Conduct 5.4(a)(5) as set forth below is approved and shall be submitted to the Oregon Supreme Court for adoption:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

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(5) A lawyer may pay the usual charges of a bar-sponsored or operated not-for-profit lawyer referral service, including fees calculated as a percentage of legal fees received by the lawyer from a referral.

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Financial Impact

None.

Presenter:
David Rosen, BOG, Region 1

Whereas, the Oregon State Bar Board of Governors must at all times direct its power to serve the public interest by (a) regulating the legal profession and improving the quality of legal services; (b) supporting the judiciary and improving the administration of justice; and (c) advancing a fair, inclusive, and accessible justice system; and

Whereas, the 2020–22 Strategic Campaign adopted by the Judicial Department focused on important shared goals, such as improving services to vulnerable and marginalized people, expanding access to justice, assisting the Office of Public Defense Services in monitoring its attorney caseloads and performance, and expanding its efforts to support diversity, equity, and inclusion in court services and the legal profession; and

Whereas, the 2021 Legislative Assembly recognized the impact of court services in providing justice services as well as addressing urgent issues facing Oregon, such as housing, behavioral health, and criminal justice reform, and provided additional funding to the Judicial Department to continue expanding its efforts under the Strategic Campaign; now, therefore, be it

Resolved, that the Oregon State Bar applaud the Legislative Assembly for its support for adequate funding in 2021–23 for Oregon’s judicial branch; encourage all members of the Oregon State Bar to apprise legislators of their thanks for funding the judicial branch and the importance of continued support for justice in Oregon; and continue to advocate that the Legislative Assembly improve funding to provide needed court services, support suitable and sufficient court facilities, ensure adequate judicial salaries that attract and retain high-quality judges, and support the goals of the Judicial Department Strategic Campaign.

Financial Impact

None.

Presenter:
Lee Ann Donaldson, BOG, Region 5

Whereas, programs providing Access to Justice to all Oregonians are a fundamental component of the Oregon State Bar efforts to provide such Access;

Whereas, pursuant to ORS 9.572, the Oregon State Bar operates the Legal Services Program by management and oversight of funds allocated by the State of Oregon for Legal Aid;

Whereas, revenue from Interest on Lawyer Trust Accounts has dwindled with the decline in Interest Rates;

Whereas, the Oregon Legal Aid Program does not have sufficient funding to meet 80% of the needs of Oregonians for Legal Representation in Civil Matters;

Whereas, given the experience developed, during the COVID-19 Pandemic; Remote Viewing has become acceptable in lieu of personal appearances and attendance at CLE Programs;

Whereas, the number of Mandatory CLE Subjects has expanded since inception, such that OSB Members will be benefited by knowing that they can achieve full compliance from a single provider;

Whereas, the Oregon State Bar has the ability to make available Video Recorded CLE Programs and related Written Materials; now, therefore, be it

Resolved, that the Oregon State Bar;

(1) Board of Governors, through a committee of its choosing which may be a standing committee, study the proposal originally set forth in HOD Delegate Resolution #1, such study to include testimony from interested parties, and report back with its findings at the 2022 HOD meeting. appoint a Volunteer Committee, in coordination with the Oregon Law Foundation and the Sections of the Oregon State Bar, to develop, produce, and make available to OSB Members, a single complete Set of Recorded Mandatory CLE Programs with sufficient content needed to provide full compliance with all the OSB Mandatory Continuing Legal Education Subject Requirements; and,

(2) That by Certifying via a Declaration of Completion, OSB Members will be deemed to have complied with the Mandatory OSB CLE Requirements; and,

(3) That the Revenue, after costs of production, from the Sale or Licensing of the OSB Approved Set of Recorded Mandatory CLE Programs be devoted to Funding Support for the Oregon Law Foundation commitment to Equal Justice for Oregon Legal Aid Programs.

Financial Impact

None stated.

Presenter:
Danny Lang, HOD, Region 3

Whereas, providing equal access to justice and high-quality legal representation to all Oregonians is central to the mission of the Oregon State Bar;

Whereas, equal access to justice plays an important role in the perception of fairness of the justice system;

Whereas, programs providing civil legal services to low-income Oregonians are a fundamental component of the Bar’s effort to provide such access;

Whereas, since 1998, pursuant to ORS 9.572, the Oregon State Bar has operated the Legal Services Program to manage and provide oversight of funds allocated by the State of Oregon for legal aid. This is done in accordance with the Bar’s Standards and Guidelines, which incorporate national standards for operating a statewide legal aid program;

Whereas, Oregon’s legal aid programs do not have sufficient resources to meet the civil legal needs of Oregon’s poor;

Whereas, the health and financial impacts of the COVID-19 pandemic are disparately impacting people from Black, Indigenous, and other people of color (BIPOC) communities, and from low-income communities;

Whereas, assistance from the Oregon State Bar and the legal community is critical to maintaining and developing resources that will provide low-income Oregonians meaningful access to the justice system; now, therefore, be it

Resolved, that the Oregon State Bar;

(1) Strengthen its commitment and ongoing efforts to improve the availability of a full range of legal services to all citizens of our state, through the development and maintenance of adequate support and funding for Oregon’s legal aid programs and through support for the Campaign for Equal Justice;

(2) Request that Congress and the President of the United States make a genuine commitment to equal justice by adequately funding the Legal Services Corporation, which provides federal support for legal aid;

(3) Work with Oregon’s legal aid programs and the Campaign for Equal Justice to preserve and increase state funding for legal aid and explore other sources of new funding;

(4) Actively participate in the efforts of the Campaign for Equal Justice to increase contributions by the Oregon legal community, by establishing goals of a 100% participation rate by members of the House of Delegates, 75% of Oregon State Bar Sections contributing, and a 50% contribution rate by all lawyers;

(5) Support the Oregon Law Foundation and its efforts to increase resources through the Interest on Lawyer Trust Accounts (IOLTA) program, and encourage Oregon lawyers to bank with financial institutions that are OLF Leadership Banks, meaning that pay the highest IOLTA rates;

(6) Support the Campaign for Equal Justice in efforts to educate lawyers and the community about the legal needs of the poor, legal services delivery, and access to justice for low-income and vulnerable Oregonians;

(7) Encourage Oregon lawyers to support civil legal services programs through enhanced pro bono work; and

(8) Support the fundraising efforts of those nonprofit organizations that provide civil legal services to low-income Oregonians that do not receive funding from the Campaign for Equal Justice.

Financial Impact

None.

Presenters:
Vanessa Nordyke, OSB#084339 HOD, Region 6, OSB Past President 2018
Ross Williams, OSB#014548 HOD, Region 5
Sonia Montalbano, OSB#970821 HOD, Region 5
Melanie Kebler, OSB#083798 HOD, Region 1

Whereas, the Mission of the Oregon State Bar is to serve Justice by promoting respect for the Rule of Law, by improving the quality of legal services, and by increasing Access to Justice, OSB Bylaw 1.2;

Whereas, Access to Justice plays an important role in the perception of fairness of the Justice System;

Whereas, Members of the Oregon State Bar tend to Practice Law within well-defined areas of Law;

Whereas, the Oregon Judicial Branch has developed a separate set of specific required procedures, identifiable as the Oregon Rules of Appellate Procedures [ORAP];

Whereas, Appellate Practice in Oregon has developed into a well-defined specialized area of Law;

Whereas, The technical, substantive, and procedural requirements for formal Appellate Practice before the Oregon Court of Appeals and the Oregon Supreme Court, generally and specifically, now required highly specialized knowledge and professional skill sets;

Whereas, Costs mandated by the Oregon Rules of Appellate Procedures, such as Certified Court Reporter Fees for preparation of Formal Transcripts of the Record, make access to Justice in the Oregon Appellate Courts beyond the affordability of most Oregon Families, Small Businesses, and Individuals [compared to the affordability by large Organizations and Corporations]; in addition to the substantial expense of Appellate Counsel Legal Fees;

Whereas, the foregoing combined expenses of pursuing an Appeal can easily range from $10,000.00 – $30,000.00, or more;

Whereas, The Oregon State Bar has previously determined that more than 80% of Oregonians are unable to afford needed Civil Legal Services [See OSB BULLETIN – “Examining the Pro Se Justice Gap; July 2021”];

Whereas, the aforementioned financial barriers, unintentionally but effectively, constitute real life barriers to Affordable Access to Appellate Justice;

Whereas, the Oregon Judicial Branch – Strategic Campaign 2020-2021, Commitment 2 – states “We will improve access to justice by eliminating barriers; continuing to simplify and streamline our processes and forms; enhancing service options; leveraging technology; improving interpreter services; and advocating for resources to keep courts open, safe, and secure. 2.1 We will launch and participate in collaborative initiatives to better serve self-represented litigants throughout the state”;

Whereas, the Oregon State Bar has appointed Advisory and Implementation Committees to undertake innovations to remove financial barriers at the Trial Court and Administrative Hearing level by the forthcoming licensing of Paralegals/Paraprofessionals needed to provide Affordable Access to Justice in other underserved areas of Law; now, therefore be it

Resolved, that the House of Delegates recommends that the Board of Governors appoint a Volunteer Committee to study innovations designed to make standard simplified Appellate Forms available; and, develop economic protocols, such as allowing Digitally Prepared Transcripts of the Record, to enable Pro Per Appellants to realize Affordable Access to Appellate Justice.

Financial Impact

None stated.

Presenter:
Danny Lang, HOD, Region 3

Whereas, the Constitutions of both Oregon and the United States require that all people facing a possible deprivation of their physical liberty in court proceedings, such as those accused of criminal offenses, juveniles accused of conduct that would constitute crimes if committed by an adult, and those who are subjects of civil commitment proceedings, have the right to assistance by ethical and competent legal counsel;

Whereas, Oregon statutes guarantee a right to counsel for parents defending against a petition to terminate their parental rights, for parents in juvenile dependency proceedings in which parents may lose custody of their children whenever the nature of the proceedings and due process so require, and for children in juvenile dependency proceedings when requested;

Whereas, those same constitutions and statutes require that the counsel provided the person be paid for by the government, if the person is indigent and cannot afford their own legal counsel;

Whereas, the Sixth Amendment Center published in January 2019 a comprehensive study of Oregon’s indigent defense system and determined that Oregon’s fixed-fee contract system pits appointed counsels’ financial self-interest against the due process rights of their clients and is prohibited by national public defense standards;

Whereas, there is a salary and resource disparity between trial level legal counsel for the person and legal counsel for the State;

Whereas, trial level legal counsel for the person are government contractors and legal counsel for the State are government employees funded through direct appropriations;

Whereas, legal counsel for the person has an ethical and professional obligation pursuant to the state and federal constitutions, as well as Oregon Rules of Professional Conduct 1.1 (“A lawyer shall provide competent representation to a client”), 1.3 (“A lawyer shall not neglect a legal matter entrusted to the lawyer”) and 1.7 (“A lawyer shall not represent a client if the representation involves a current conflict of interest”) to provide adequate and conflict-free representation;

Whereas, the American Bar Association has acknowledged for over a decade that resource parity, salary parity, and caseload standards are essential to its “Ten Principles of Public Defense”;

Whereas, the House of Delegates has long supported a strong public defense system and increased financial resources for public defense providers; now, therefore, be it

Resolved, that the Oregon State Bar, through its Board of Governors and staff, continue to participate actively with courts, prosecutors, the Oregon Department of Justice, the Legislative Assembly, the Public Defense Services Commission, the Office of Public Defense Services, the Oregon Criminal Defense Lawyers Association, and other public safety and child welfare stakeholders, to obtain equal resources and commensurate compensation for public defense providers, and work toward developing caseload standards that ensure those public defense providers can meet their constitutional and ethical obligations.

Financial Impact

None stated.

Presenters:
Shannon Flowers, HOD, Region 6
Michelle Bartov, HOD, Region 1
Justin Morton, HOD, Region 1

Whereas, the Well-being of the legal profession is of integral importance to the OSB, the PLF, the OJD, Oregon Law Schools, Affinity Bars, Legal Employers, and the OAAP. These stakeholders have been working toward improving the well-being of the Oregon legal community and collaboration is necessary to achieve the goal of improving well-being.

Whereas, Equity is a vital component of all well-being efforts in our professional community.

Whereas, Oregon is a national leader in well-being efforts within our profession and, despite many improvements having been made, there remain areas in need of attention. The following areas should be explored:

i. Informing well-being efforts using diversity, equity, and inclusion principles and values,

ii. Reducing stigma/shame and increasing help-seeking behaviors,

iii. Vicarious trauma within our profession,

iv. Lawyer Education and Law School practices,

v. Regulatory and disciplinary practices that affect well-being,

vi. Well-being in the workplace and evolving legal culture,

vii. Law practice management,

viii. Structural impediments to well-being including UTCRs, court timelines, and trial court administration,

Now, therefore, be it

Resolved, that the HOD directs the Oregon State Bar and stakeholders within its authority, and strongly recommends to those stakeholders who are not, to convene the Conference of Stakeholders to address the foregoing areas of concern by June 2022 and provide a provisional report to the HOD at its annual meeting in November 2022. The goal of the Conference of Stakeholders is to improve well-being though collaborative efforts in each of the areas of concern. There will be costs attached to this endeavor and stakeholders will discuss distribution of those costs.

Financial Impact

None stated.

Presenter:
Vanessa Nordyke, HOD, Region 6, OSB Past President 2018

Whereas, the Constitutions of both Oregon and the United States require that all people facing a possible deprivation of their physical liberty in court proceedings, such as those accused of criminal offenses, juveniles accused of conduct that would constitute crimes if committed by an adult, and those who are subjects of civil commitment proceedings, have the right to assistance by ethical and competent legal counsel;

Whereas, Oregon statutes guarantee a right to counsel for parents defending against a petition to terminate their parental rights, for parents in juvenile dependency proceedings in which parents may lose custody of their children whenever the nature of the proceedings and due process so require, and for children in juvenile dependency proceedings when requested;

Whereas, those same constitutions and statutes require that the counsel provided the person be paid for by the government, if the person is indigent and cannot afford their own legal counsel;

Whereas, the Sixth Amendment Center published in January 2019 a comprehensive study of Oregon’s indigent defense system and determined that Oregon’s fixed-fee contract system pits appointed counsels’ financial self-interest against the due process rights of their clients and is prohibited by national public defense standards;

Whereas, there is a salary and resource disparity between trial-level legal counsel for the person and legal counsel for the State;

Whereas, trial-level legal counsel for the person are government contractors and legal counsel for the State are government employees funded through direct appropriations;

Whereas, court-appointed appellate counsel and appellate counsel representing the State are both employees of the State yet a significant salary disparity exists between those attorneys;

Whereas, legal counsel for the person has an ethical and professional obligation pursuant to the state and federal constitutions, as well as Oregon Rules of Professional Conduct 1.1 (“A lawyer shall provide competent representation to a client”), 1.3 (“A lawyer shall not neglect a legal matter entrusted to the lawyer”) and 1.7 (“[A] lawyer shall not represent a client if the representation involves a current conflict of interest”) to provide adequate and conflict-free representation;

Whereas, the American Bar Association has acknowledged for over a decade that resource parity, salary parity, and caseload standards are essential to its “Ten Principles of Public Defense”;

Whereas, the House of Delegates has long supported a strong public defense system and increased financial resources for public defense providers; now, therefore, be it

Resolved, that the Oregon State Bar, through its Board of Governors and staff, continue to participate actively with courts, prosecutors, the Oregon Department of Justice, the Legislative Assembly, the Office of Public Defense Services, the Oregon Criminal Defense Lawyers Association, and other public safety and child welfare stakeholders, to obtain equal resources and commensurate compensation for public defense providers, and work toward developing caseload standards that ensure those public defense providers can meet their constitutional and ethical obligations.

Financial Impact

None stated.

Presenters:

Resolved, that the OSB House of Delegates and members assembled stand for a moment of silence in honor of the members of the Oregon State Bar who have died since the 2020 House of Delegates Meeting.

Presenters:
Gabe Chase, BOG, Region 5
Matt McKean, BOG, Region 4
Joseph Hesbrook, BOG, Public Member

Whereas, military service is vital to the perpetuation of freedom and the rule of law; and

Whereas, thousands of Oregonians have served in the military, and many have given their lives; now, therefore, be it

Resolved, that the Oregon State Bar hereby extends its gratitude to all those who have served and are serving in the military, and further offers the most sincere condolences to the families and loved ones of those who have died serving their country.

Presenter:
Colin Andries, BOG, Region 5