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State lawyer group mulls controversial changes to make pending disciplinary records off-limits to public


Some lawyers say changes would remove checks and balances, breed cronyism.

OREGON STATE BAR - Sylvia StevensThe state agency that oversees the investigation of ethics complaints against 15,000 Oregon lawyers is considering changes that would hide from public view most pending complaints and destroy all public records of dismissed complaints after three years, a radical increase in secrecy for a system that’s received national praise for its transparency.

The push to withhold pending complaints from the public are among several changes proposed by a committee composed entirely of lawyers who were selected by top bar officials. The group’s final report has been greeted by some lawyers as a welcome modernization of state rules to speed up cases and be more consistent with other states. But it’s also sparked accusations – including by some of the committee’s own members -- that its work has been cynical and self-serving and would harm the public good.

In 2014, about 1,800 complaints were filed against Oregon lawyers. Of those the bar’s disciplinary office followed up on about 350 and prosecuted 105, leading to 48 cases in which sanctions such as suspensions and reprimands were issued.

The debate over the proposed changes to state’s longstanding disciplinary system highlights the tensions inherent in the Oregon State Bar which doubles as a professional organization while carrying out a state-sanctioned mission of protecting the public from unethical lawyers. While discussion of the issue has previously been restricted to lawyers, members of the public now have until March 2 to submit written comments on the changes, which can be found here .

The changes are not close to being adopted. The bar’s board of governors is expected to vote on recommendations to the Oregon Supreme Court in March. The Oregon Legislature would have to sign off on any statutory changes.

The changes would authorize a professional disciplinary judge to help rule on cases, a move that is not highly controversial. The more debated recommendation among lawyers is the push to centralize power in the state Bar’s disciplinary office. The committee proposes to severely restrict the authority of a group of volunteer outside lawyers set up by state law to oversee the bar’s disciplinary work, called the State Professional Responsibility Board -- long considered the conscience of the bar.

People such as outgoing bar executive director Sylvia Stevens say some of the changes would reduce delays and professionalize the state’s disciplinary system. Others say it would unhinge a system of checks and balances that prevents the bar from playing favorites with large, well-heeled Portland law firms that sponsor bar events.

OREGON STATE BAR - Sylvia Stevens

“It's going to make that process more political, and it's going to take away all bar membership and public oversight of the disciplinary process,” said Bend lawyer Greg Hendrix, who has been an active volunteer in the state’s disciplinary system, once chairing the volunteer oversight board. “They call this ‘modernization’ but it’s going to make the bar discipline process much more subject to cronyism.”

Stevens disagreed in a Dec. 30 interview, the day before she retired. She said the push to modernize the system is long overdue.

“It's the way most jurisdictions operate,” she said. “We're really behind the times.”

The committee proposing the changes was set up to respond to a report by a committee of the American Bar Association that was invited by the Oregon State Bar to review its disciplinary system. The group praised Oregon for its transparency and for the inclusion of volunteers at every step of the disciplinary process, but also called for the disciplinary office to be granted more independence of the bar.

Following the ABA report, the committee appointed by the Oregon State Bar to make recommendations based on it decided to go in a different direction – many of its proposals mirroring earlier efforts to centralize power that were sought by bar staff such as former disciplinary counsel John Gleason.

The committee recommended that complaints be kept secret until they either were authorized for an administrative prosecution or were acted upon in some way by the bar –-such as dismissal.

The ABA had praised Oregon’s commitment to public disclosure, as well as its system of letting people whose complaints are dismissed by the bar appeal that decision to the volunteer professional responsibility board. The Oregon committee, however, recommended eliminating that appeal.

The committee did agree with an ABA recommendation that bar complaints that are dismissed, currently kept for 10 years, instead be purged after three years.

Committee member Richard Weill, a Troutdale lawyer who has been an active volunteer prosecutor for the bar in ethics cases, served on the committee. But after its final report he penned a stinging dissent that questioned the bar’s decision to include on the disciplinary review committee a lawyer, Barnes Ellis, who was at the time being prosecuted by the bar for alleged ethics violations.

Ellis, a respected Portland lawyer, had been accused of a conflict of interest in a high profile case in which he represented some employees of a firm being investigated by the federal government as well as the firm itself. The Oregon Supreme Court overturned his discipline in February 2015, three months after he was named to the disciplinary overhaul effort.

In his own comments on the recommendations, Ellis rejected Weill’s criticism and also praised the push to withhold pending complaints from public disclosure until disciplinary charges are approved, saying it protected the accused lawyer’s “reputational interest.”

Those complaints have been public since a 1976 Oregon Supreme Court decision struck down bar rules that kept them confidential, saying the secrecy was “not for the benefit of the complainant, but for the lawyer complained against."

Comments on the proposals can be submitted by email to This email address is being protected from spambots. You need JavaScript enabled to view it. or in writing to Oregon State Bar, PO Box 231935, Tigard, OR 97281.

By Nick Budnick
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