Resolutions

The House of Delegates (HOD) is governed by the HOD Rules of Procedure, which control debate and procedure within the House. Any actions not covered under these rules are governed by Robert’s Rules of Order. The HOD Rules of Procedure have not been amended or changed since 2010.

Since 2010, there have been substantial changes to the way that the House of Delegates operates. Most notably, the HOD has been operating with remote appearances and electronic voting since 2020. In 2022, the HOD meeting was conducted in a hybrid format, allowing for Delegates to choose either remote or in-person appearance at the meeting.

The HOD Rules of Procedure did not envision conducting business through these remote and electronic means. Our experience over the last few years has demonstrated the need for revisions to the rules to better serve this new hybrid meeting environment. The proposed amendments to the HOD Rules of Procedure address remote appearances, debate, electronic voting, and amendments. They are intended to promote a smooth and efficient meeting, allow for robust, transparent, and fair participation by all delegates, and enable the president to maintain decorum of the HOD meeting.

The proposed amendments to the HOD Rules of Procedure were presented for public comment between May 23 and June 20, 2023. Four public comments were received, primarily indicating that having the option to participate remotely was appreciated. One comment requested an adjustment to require remote delegates to show their names on the online platform. That change was added to the rules.

A synopsis of the changes are as follows:  

Rule 1 has been amended to allow for the Board of Governors to decide whether to hold an in-person, hybrid, or completely remote House of Delegates meeting each year.

Rule 3 has been amended to establish the procedure for delegates to utilize the electronic platform for the House of Delegates.

Rule 5 has been amended to require delegate resolutions to be submitted at most 180 days prior to a House of Delegates meeting. This period allows for the submission of delegate resolutions to occur after the year’s election to the House of Delegates. This change is to avoid a circumstance where a delegate submits a resolution prior to the election and does not win reelection.

Rule 6 has been amended to clarify that delegates appearing remotely are counted for quorum.

Rule 7 has been amended to clarify debate will function. Delegates may utilize online queues to different online queues. and that motions are to be taken from a separate queue.

Rule 8 has been amended to address the usage of an electronic voting system for taking votes during the proceeding.

Rule 9 has been added to simplify the amendment process and avoid amendments within amendments due to the technological limitations within the electronic platforms used for voting.

The Board of Governors recommends adoption of these amendments, to go into effect immediately.

Oregon RPC 1.2(c) prevents a lawyer from counseling a client to engage in, or assisting a client in, conduct that the lawyer knows is illegal or fraudulent. It reads:

(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

In 2014, the OSB Legal Ethics Committee (LEC) recommended an exception to the RPCs be adopted to allow attorneys to advise clients regarding the then pending legalization of marijuana within Oregon. The exception adopted by the HOD and approved by the Oregon Supreme Court, RPC 1.2(d), states:

(d) Notwithstanding paragraph (c), a lawyer may counsel and assist a client regarding Oregon’s marijuana-related laws. In the event Oregon law conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy.

On June 13, 2022, the OSB Cannabis and Psychedelics Section Executive Committee requested the LEC review RPC 1.2(d) considering the changes to the law in relation to psilocybin. Specifically, the Oregon Psilocybin Services Act (OPSA) allows the Oregon Health Authority to establish a framework for the manufacture and administration of psilocybin. Psilocybin, like marijuana, is still a Schedule I substance in the federal Controlled Substances Act.

The LEC reviewed the request from the Cannabis and Psychedelics Section Executive Committee and noted that a broader exception may be necessary to prevent the LEC from revisiting the issue each time there is a conflict between federal and state law. Additionally, there is a new concern about conflicting state laws between states. Recent events have created long-arm statutes that criminalize advising and assisting clients with reproductive rights and gender-affirming care that is legal within Oregon, but illegal in other jurisdictions. These amendments to 1.2(d) provide confidence to attorneys that advising clients about proposed conduct that is legal in Oregon will not be considered unethical behavior.

The LEC recommends that RPC 1.2(d) also adjust the language to include conduct the “lawyer reasonabl believes is permitted under Oregon law.” The LEC decided to adopt a “reasonably believes” standard in order to allow the attorney to counsel the client based on the reasonable interpretation of the law at the juncture that the client is requesting advice. The option of “expressly permitted” was raised, but the concern was that a potential change in the judicial interpretation of a law could cause a violation of the Rule. A “reasonably believes” standard allows lawyers to provide legal advice based on the reasonable interpretation of the law at the present time without fear that a future judicial decision may subject them to a future ethical violation of the RPCs.

The LEC also recommends changing “shall” to “may.”  The LEC noted that the marijuana industry has matured, and business providers may seek advice from attorneys specializing in certain areas of the law not linked to criminal law or the Controlled Substances Act. Additionally, attorneys may not be adequately competent to discuss the conflict between the laws of other jurisdictions or the potential legal consequences.

The LEC recommended the preceding amendments to create a broader exception to provide attorneys with the ability to provide clients with competent legal assistance in the climate of conflicting laws. The OSB Board of Governors agrees with the LEC recommendations and urges the HOD approval.

This amendment is a modification to the 2022 House of Delegates Resolution #2 to Amend RPC 1.8. In 2022, the Oregon State Bar Board of Governors recommended the submission of ABA Model Rule 1.8(e)(3) to the House of Delegates (HOD) for approval. The HOD raised several questions about the proposal and submitted it back to the Legal Ethics Committee (LEC). The LEC submitted this modified language, which the Board of Governors approves and recommends for passage.

Currently, Oregon RPC 1.8(e)(1) and (2) strictly limit financial assistance to clients in connection with a pending or contemplated litigation with two exceptions. First, the lawyer may advance court costs and litigation expenses, the repayment of which may be contingent on the outcome of the matter. Second, for indigent clients, the lawyer may pay the court costs and expenses of litigation. Under the current RPC 1.8(e), attorneys may not give money or things of value to clients in litigation who need help with the basic necessities> of life.

The American Bar Association (ABA) adopted a third subsection to ABA Model Rule 1.8(e) that provides an additional exception to lawyer financial assistance. ABA Model Rule 1.8(e)(3) reads:

(e)  A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

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(3)  a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine, and other basic living expenses. The lawyer:

(i)  may not promise, assure, or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;

(ii)  may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and

(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.

Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee-shifting statute.

The ABA noted that this new rule was a narrow exception to ABA Model Rule 1.8(e) that provided increased access to justice to many vulnerable clients. The ABA further noted it was a humanitarian rule, allowing attorneys to help indigent clients with basic needs without running afoul of their ethical obligations. In many instances, the provision of modest gifts can allow an indigent client to continue with their proceedings by providing food security or shelter security, or even simply having access to the courthouse by providing fare for transportation.

At the 2022 HOD meeting, several questions were raised about the proposal, which the Legal Ethics Committee has examined. The LEC modified the language of the amendment to address some of those concerns.

First, the LEC removed additional references to “pro bono.” The removal of the additional language was specifically to avoid confusion as to the definition of pro bono. During debate at the 2022 House of Delegates, there was confusion as to whether pro bono meant that the client was not charged for services, or if the attorney did not receive payment for services. The latter interpretation led to concerns that the rule may not apply to legal aid programs that provide attorneys with a salary, but do not charge their clients. The LEC noted that Washington had the same concern and removed additional references to pro bono to clarify that nonprofit legal service and public interest organizations are covered under this Rule

Second, the LEC added “through a court appointment” to address concerns about the application of this rule in indigent defense. There was substantial concern raised at the 2022 House of Delegates meeting about the application of this Rule to indigent defense providers. The LEC opted to use the word court appointment to cover consortia that may only provide indigent defense as part of their practice and other areas of indigent defense, such as juvenile proceedings.

The LEC reviewed additional questions raised by the 2020 House of Delegates. They researched the issues as noted below:

1. The 2022 HOD raised questions about the liability of an attorney for providing gifts that may be used for substance abuse, and whether such liability would be covered by PLF coverage.

The LEC noted that the PLF responded that it is unlikely that an attorney would be found liable in a claim for relief related to a gift under 1.8(e)(3). PLF coverage always depends on the facts and circumstances of any given claim. However, it does not appear that this rule would generate a malpractice issue. The PLF also noted that education could be provided about possible risks and best practices. Additionally, this change to RPC 1.8(e)(3) does not obligate attorneys to provide financial assistance or other gifts to clients, and attorneys who had concerns about potential liability could choose not to give such assistance to clients.

The LEC opted to keep the current language based on this response.

2. The 2022 HOD also raised questions about whether the lack of a definition of modest would be a concern, and proposed language to provide limits to the value and the type of gifts (cash versus non-cash) that could be provided.

The LEC debated this issue and noted several concerns about adopting such language. The primary concern focused on the purpose of this rule, and that was to allow attorneys to provide a humanitarian response to many of the clients they provided services to without charge. The original amendment was proposed by the ABA Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Legal Aid and Indigent Defendants to increase access to justice by allowing attorneys to provide some aid to their most vulnerable clients.

The original proposal noted that the ABA declined to define modest, or to create specific amounts. Part of the reason to decline to create a cap or define “modest” was to account for different costs of living within different jurisdictions. The LEC also noted that restrictions on the type of gift or the value of the gift, or reporting requirements would deter attorneys from utilizing the exception and render the exception ineffective. The ABA also noted that, in pro bono cases where this limited exception would apply, the potential for harm to the client by receipt of a gift, was remote.

The LEC opted to keep the current language based on this review.

The LEC reviewed this matter and discussed the importance of this amendment. It found that the proposed amendment is narrow enough to avoid many of the concerns related to attorneys providing financial assistance to clients in litigation. The narrowness of the rule avoids any potential for champerty and maintenance to occur under this exception. A review of past disciplinary matters under 1.8(e) was conducted as well, and it was noted that the limited violations that occurred were in the context of attorneys providing assistance to fee-paying clients, and not in a pro bono context.

Oregon RPC 8.4(a)(7) was passed in 2015 prior to the American Bar Association (ABA) adopting a similar rule within the Model Rules of Professional Conduct. The ABA’s analogue to RPC 8.4(a)(7), Model Rule of Professional Conduct (ABA MR) 8.4(g), was passed in 2016. In February 2022, the Board of Governors (BOG) requested the Legal Ethics Committee (LEC) review Oregon RPC 8.4(a)(7) and recommend whether the rule should be amended to more closely conform to ABA MR 8.4(g).

ABA MR 8.4(g) reads as follows:

It is professional misconduct for a lawyer to:

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(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The LEC formed a subcommittee that met over 2022 to review Oregon RPC 8.4(a)(7) and ABA MR 8.4(g). Upon the presentation of the findings of the subcommittee to the LEC, the LEC recommended two changes to RPC 8.4(a)(7).

First, the LEC recommended changing the phrase “in the course of representing a client” to “in the practice of law.” This phrase was felt to be broader and encompasses actions taken by lawyers in their role practicing law, which may not necessarily occur while representing a client. At the same time, it strikes a reasonable balance between the free speech rights of the attorney under the Oregon Constitution and the professional responsibilities of the attorney as an officer of the court. Conduct that would be considered inappropriate behavior while practicing law would be subject to discipline under this new provision. Oregon RPC 8.4(c) still contains an exception specifically for attorneys providing legitimate advocacy.

The LEC also noted that “ethnicity” was omitted from Oregon RPC 8.4(a)(7). The LEC recommended the addition of “ethnicity.”

The BOG agrees with the recommendations from the LEC and urges adoption of the proposed amendments.

National survey findings and media attention have long documented the health concerns attendant to the legal profession, including stress, anxiety, depression, and problem substance use. It is evident that lawyer well-being issues can no longer be ignored.¹ In 2016, a National Task Force on Lawyer Well-Being (Task Force) was formed as a collaborative effort by the ABA Commission on Lawyer Assistance Programs and a broad coalition of other national legal organizations. The Task Force Report noted several concerning trends within the legal profession and significant well-being challenges in all major sections of the legal profession in the United States.²

The 2017 Task Force Report spurred several reforms by the Oregon State Bar (OSB or Bar) and the Oregon Supreme Court (Court). The Bar and the Court, in collaboration with the Oregon Attorney Assistance Program (OAAP), adopted a continuing legal education requirement on mental health and substance use, and essential eligibility requirements for admission, and revised bar application questions about mental health history. The Task Force Report also inspired Oregon’s January 2019 Wellness Summit (2019 Summit), a collaboration by the OSB with the OAAP. Leaders in the profession gathered at the 2019 Summit to discuss well-being issues, and then provided the Board of Governors (BOG) with recommendations for Bar departments and volunteer groups. The recommendations noted that volunteer and stakeholder groups were an integral element of the future of well-being.

In 2021, the Bar’s House of Delegates (HOD) built off the 2019 Summit and approved Delegate Resolution No. 5, Conference of Well-Being Stakeholders. Delegate Resolution No. 5 directed the Bar to convene a Conference of Well-Being Stakeholders (the Conference). In June 2022, this Conference convened with several leaders from stakeholder groups who identified challenges to well-being.

These challenges were the subject of the discussion meetings of four designated Workgroups: (1) Well-Being in the Workplace and Evolving Legal Culture/Law Practice Management; (2) Regulatory and Disciplinary Practices, and Structural Impediments to Well-Being; (3) Reducing Vicarious Trauma and Stigma in the Legal Profession; and (4) Lawyer Education and Law School Well-Being. Workgroups were comprised of members of the bar from solo practitioners to members of mid-size and large firms; employees of nonprofits; government; and employees of the OAAP, PLF, and OSB.

Throughout the Conference and the continued meetings thereafter, four recurring threads permeated the Workgroup discussions. The WB Report delves into the discussion within each workgroup, along with the common issues that each workgroup discussed.

1. A knowledge gap exists among the public, members, bench, and law schools, specifically as to what well-being is; why well-being is important; and how do we achieve well-being in the legal profession.
2. Legal culture and business practices are entrenched in historic traditions that are sometimes at odds with well-being practices.
3. Application and disciplinary processes are stressful and stigmatizing to lawyers as well as confusing and arduous for the public.
4. Cultural changes are necessary to foster well-being and longevity in the profession.

Oregon has long been a national leader in recognizing the importance of well-being in the legal profession. The Oregon Attorney Assistance Program (OAAP) has been a well-being resource since 1982, providing counseling, assisting, educating, and advocating for lawyers, judges, and law students. Additionally, the OSB Quality of Life Committee demonstrates the Bar’s concern and commitment to the health and well-being of the legal community. Its mission is to encourage and support a culture that recognizes and promotes quality of life objectives as important to personal and professional development.

With all we have done in Oregon, we can and must do more. The WB Report provides a summary of the types of issues that must be addressed, and ideas for stakeholders to consider establishing a sustainable culture-shift that recognizes and values lawyer well-being as critical to protection of the public, the provision of high-quality legal services, and the advancement of a fair, inclusive, equitable, and accessible justice system.

The WB Report provides initial feedback from stakeholders on their experiences of the well-being issues within the legal profession in Oregon. There is more work to be done by all stakeholders to advance well-being in the legal profession.

The BOG offers its gratitude and appreciation to the HOD and its members for prioritizing well-being (individually and as a body) and in passing 2021 Delegate Resolution 5, which established the Conference of Stakeholders and led to the WB Report. The BOG stands with the HOD in its continuing commitment to prioritize well-being among legal professionals and asks that the HOD pass this resolution and its subparts.

¹ Bree Buchanan & James C. Coyle, National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Profession, Am. B. Ass’n (Aug. 14, 2017),
https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportFINAL.pdf (hereafter, “Task Force Report”).

² Task Force Report at 10-11.

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. One of the three main functions of the bar is to advance a fair, inclusive, and accessible justice system.

The Board of Governors and the House of Delegates have adopted a series of resolutions supporting adequate funding for civil legal services in Oregon (Delegate Resolutions in 1996, 1997, 2002, 2005–2022). This resolution is similar to the resolution passed in 2022.

The legal services organizations in Oregon were established by the state and local bar associations to increase access for low-income clients. The majority of the boards of the legal aid programs are appointed by state and local bar associations. The Oregon State Bar operates the Legal Services Program pursuant to ORS 9.572 to distribute the state statutory allocation for civil legal services and provide methods for evaluating the legal services programs. The Campaign for Equal Justice works collaboratively with the Oregon Law Foundation and the Oregon State Bar to support Oregon’s legal aid programs. The Bar and the Oregon Law Foundation each appoint a member to serve on the board of the Campaign for Equal Justice

Oregon’s legal aid program consists of three separate non-profits that work together as part of an integrated service delivery system designed to provide high-priority, free, civil legal services to low-income Oregonians in all 36 Oregon counties through offices in 18 communities. There are two statewide programs, Legal Aid Services of Oregon (LASO) and the Oregon Law Center (OLC); and one county-wide program, the Center for Non-Profit Legal Services (Jackson County). Because the need is great and resources are limited, legal aid offices address high priority civil legal issues such as safety from domestic violence, housing, consumer law, income maintenance (social security, unemployment insurance, and other self-sufficiency benefits), health, employment and individual rights. In 2022, about 20% of legal aid’s cases were family law cases, usually helping victims of domestic violence. Another 45% of cases were related to maintaining housing. All of these programs work to stretch limited resources through pro bono programs and self-help materials. Last year legal aid directly served almost 23,000 clients, a 50% increase over the prior year. An additional 500,000 Oregonians benefited from legal aid’s administrative advocacy. Legal aid’s website, www.oregonlawhelp.com received over 426,000 unique visitors last year alone. Additionally, Oregonians who were victims of wildfires received vital self-help information and referrals through legal aid’s disaster service website, https://oregondisasterlegalservices.org.

The Oregon Judicial Department (OJD) appreciates the legislature’s commitment to Oregon’s court system. The efforts of the OJD and the Oregon State Bar’s Oregon Campaign for Court Funding resulted in improvements in court funding in recent legislative sessions. With the passage of the 2023–2025 budget, the Oregon Judicial Department is in a much better position to effectively provide court services to Oregonians. However, there is more work to be done.

This past biennium, as well as during the 2023 Legislative Session, the OJD focused on its 2020– 2023 strategic campaign initiatives:

• Improving services and outcomes for people who are underserved, vulnerable, or marginalized. The OJD’s funding priorities included its statewide pretrial release system and a conservatorship pilot project, as well as additional funding for staff in family treatment courts and specialty courts.
• Reducing barriers to access to justice by simplifying and streamlining processes and forms, enhancing service options, leveraging technology, improving interpreter services, and keeping courts open, safe, and secure. During the 2023 Legislative Session, the OJD concentrated its efforts on improving services for self-represented litigants by using technology and providing adequate resources for Oregon’s courts.
• Enhancing the public’s trust and confidence in Oregon’s state courts by listening and responding to the needs of those we serve, holding ourselves to high standards, and communicating the role of our courts in providing justice for all.
• Creating a workplace and courthouse culture that is supportive, inclusive, welcoming, and affirming, that embraces diversity, and where all people can thrive and are treated with respect and dignity.

While important progress has been made, additional challenges remain. It is critical that the Oregon State Bar and its members continue to support the OJD’s strategic initiatives, courthouse improvements, and adequate funding for the court system to ensure that court services remain accessible to all Oregonians.

The House of Delegates takes seriously its obligation to use the bar’s resources wisely, especially because over two-thirds of the bar’s annual revenue comes from the mandatory annual membership fees. For the last two years, there have been bar fee increases. Despite increases to bar dues, membership growth remains flat. Studies have shown that Oregon has the highest active bar fees in the United States. High bar dues may be acting as a deterrent to promoting new membership. High bar dues create a stress on active bar members, especially solo and small firm practitioners. High bar dues also have a disproportionate impact on attorneys with limited financial resources which includes a higher proportion of attorneys who are part of or who represent marginalized communities.