The group that oversees Oregon lawyers may make it harder for members of the public to go after bad or unethical attorneys.

A set of disciplinary rule changes recommended by a committee of lawyers, set to be voted on in a public meeting Friday, March 11, would dramatically tilt the playing field in favor of lawyers accused of wrongdoing, according to comments submitted to the Oregon State Bar.

The changes were proposed in the name of streamlining and modernizing Bar rules. But some current and former Bar disciplinary officials, who are deeply versed in the state legal ethics laws, are among those saying the proposed changes are flawed and would undermine protection of the public.

The rule changes would benefit accused attorneys at several steps of the disciplinary process, making it more difficult to prosecute cases, removing public oversight and creating new loopholes that attorneys facing ethics charges could exploit, according to a March 2 memo from Dawn Evans, the top disciplinary lawyer for the Oregon State Bar. OREGON STATE BAR - Dawn Evans, Disciplinary Counsel for the Oregon State Bar.

The rule changes would “sacrifice public protection” in the name of protecting lawyers’ reputations, says Mary Cooper, a retired assistant disciplinary counsel for the Bar who commented on the proposal. If adopted, she added, “honest self-regulation in Oregon will be replaced by a much more cynical and self-protective system.”

The changes will be considered at a meeting of the Board of Governors of the Bar, set for 1:30 p.m. in Tigard.

The Bar doubles as a professional association and a de facto state oversight agency, investigating complaints about lawyers who lie, provide poor representation, or steal their clients’ money.

In 2014, about 1,800 complaints were filed against Oregon lawyers by their clients, members of the public and other lawyers.

But the Bar’s disciplinary unit chafes some attorneys who say the process takes too long and is too transparent. Unlike other states, where complaints are secret unless they are upheld by the state Bar, Oregon’s system allows members of the public to view complaints and find out about a lawyer’s complaint history before hiring them.

The committee proposing the changes was set up to respond to an American Bar Association report on Oregon’s disciplinary system. The national group had praised Oregon for its transparency and for the inclusion of volunteers at every step of the disciplinary process. But it also called for the disciplinary office to be granted more independence within the Bar.

The lawyer-only committee appointed by the Oregon State Bar to mull potential changes decided to go in a different direction.

It proposed centralizing power in the Bar’s disciplinary office and making pending cases secret. It also supported the hiring of a professional judge to help process cases, while significantly curbing the power of the Bar’s board of practicing lawyers that oversees the Bar’s disciplinary prosecutions.

Barnes Ellis, a respected Portland lawyer who sat on the committee, praised its recommendations as a recipe to reduce the length of cases that can take years. Because cases are public, even if the lawyer is eventually not found guilty of ethics violations, the process causes “significant reputational, financial and emotional harm,” he wrote in a Nov. 23 letter to the Board of Governors and the Oregon Supreme Court.

But others questioned the inclusion of Ellis on the committee, noting that he himself was being prosecuted by the Bar for alleged ethics violations when he was appointed. The Bar had accused him 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 disciplinary admonition in February 2015, three months after he was named to the disciplinary overhaul effort.

The public comment period on the proposed changes closed on March 2.

The vast majority of those who submitted comments were lawyers. But most of the comments submitted, including by top lawyers such as Larry Matasar and Elden Rosenthal, defended the current system and questioned the changes.

“Granting complete prosecutorial responsibility to (the Bar) without providing adequate oversight invites opportunity for influence and power to be abused,” Rosenthal wrote in a Jan. 8 email to the Bar.

The Bar’s recommendations will be forwarded to the Oregon Supreme Court for approval. Any statutory changes must be approved by state lawmakers.

By Nick Budnick
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