Oregon State Bar

Oregon has an "integrated bar": all attorneys in Oregon are required to join the Oregon State Bar if they desire to practice law in Oregon. Membership fees and program fees from the 16,000 active members, together with revenue from bar programs, fund the entire budget of the agency. These recommendations are given to the Governor of Oregon who makes the final appointment decision. As of 2006, the program premium was $3,000 per year for $300,000 in coverage. == Name ==

The Oregon Bar Association (OBA) was a voluntary association from 1890 to 1935. During its existence, OBA was also commonly referred to as the "Oregon State Bar Association" even though that was not its formal name. The "Oregon State Bar" (OSB) is a public corporation established in 1935 by the Oregon Legislature to replace OBA. In popular usage, the term "Oregon Bar Association" has been often used to describe OSB. == History ==

The Oregon Bar Association was organized on November 8, 1890. One vice-president was selected from each of the seven judicial districts of Oregon. Membership was voluntary, although as of July 1, 1927, any lawyer who became a member of a local bar association was automatically deemed to be a member of the Oregon Bar association. The first president of the Oregon Bar Association was Cyrus A. Dolph, a prominent lawyer who had begun practice in Portland, Oregon in 1866. The bar association's first annual meeting was held on October 17, 1891, in Portland. The constitution and by-laws of the association provided for committees on (1) jurisdiction and statutory reform, (2) judicial administration and remedial proceedings, (3) legal education and admission to the bar, (4) grievances as to alleged misconduct by lawyers, and (5) admission and membership. One of the attorneys, U.S. Grant Marquam, who was charged with misappropriation of client funds, was the son of millionaire and prominent politician Philip A. Marquam. Four of the eight lawyers had been convicted of crimes forming the basis for the disbarment proceedings, and one of those four was already in the state penitentiary. The Grievance Committee found that the advertisement was neither illegal nor grounds for disbarment, but criticized it as being unprofessional. A motion was then passed to refer the matter back to the Grievance Committee with instructions to bring it to the attention of the supreme court. ABA Ethics Canon 27 stated that it was unprofessional conduct for a lawyer to solicit business by advertising. Many years later, broad bar association restrictions on lawyer advertising were stricken down in Bates v. State Bar of Arizona as violations of the First Amendment guarantee of freedom of speech. Even after Bates, bar associations were still free to regulate advertising that was "false, deceptive, or misleading." Current bar rules further forbid a lawyer from charging "any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce." Murder of bar prosecuting counsel On the afternoon of Saturday, November 28, 1908, attorney Ralph B. Fisher, who had been the prosecutor for the grievance committee of the Oregon State Bar Association was shot and killed in his Portland office in the Mohawk Building by former attorney James Anderson Finch. Finch had been disbarred for having appeared in court in an intoxicated condition and forging the name and notarial seal of his law partner to an affidavit. Fisher had presented the disbarment case against Finch to the Oregon Supreme Court. The evidence though was that Fisher, even though the bar's prosecutor in a clear case against Finch, had aided him by urging the Supreme Court to find him capable of reform and not impose full disbarment, but rather a suspension only, a recommendation which the court followed. The Oregon Daily Journal broadly portrayed Finch as mediocre lawyer and a drunk, with revenge as his motive. The Sunday Oregonian provided details such as the nature of the disbarment proceedings for Finch. Finch was subsequently convicted of murder and sentenced to death. Governor Frank W. Benson refused to commute the sentence, even though the petition was taken to him personally by Finch's wife, to whom he had been married less than a year. Finch was executed by hanging at Salem on November 12, 1909, in a scene reported luridly in the newspapers. Lawyer R.R. Duniway objected to any change which would make it more difficult for applicants to practice, saying that he could not have practiced if the requirements proposed by the committee had been in effect when he was admitted to the bar. Before then, candidates for admission had been examined by the court itself, or by its designees. According to a newspaper article published in November 1915, there were hundreds of lawyers in Oregon unable cope with the difficult legal conditions of the time, who had passed the bar examination "when that barricade was more or less a joke.". On October 21, 1918, Albers was arrested in Portland, Oregon and charged with violation of the Espionage Act of 1917. After a jury trial in early February 1919 in Portland, Albers was found guilty. On March 17, 1919, Albers was sentenced to three years of penal servitude at the U.S. penitentiary on McNeil Island and to pay a $10,000 fine. Albers filed an appeal. and was at liberty while it was pending. In April 1921, when the case was called for oral argument, Solicitor General of the United States William L. Frierson conceded there had been an error in the Albers case, and moved to vacate the conviction. The error appears to have been the admission of evidence of alleged pro-German statements by Albers before war had been declared. The bar association sent a telegram to Oregon's U.S. Senator Charles L. McNary which requested that the senator go before the Supreme Court and move for a stay of the order reversing the conviction of Albers. Albers died of a stroke on July 27, 1921 at his home in Milwaukie, Oregon, before any remanded proceedings could occur in U.S. district court. The Oregon Law Review The Oregon Law Review began publication in 1921, with the first editor being Prof. Thomas A. Larrimore. By 1933 it was a quarterly publication and the official organ of the Oregon Bar Association, with a mailing list of 1350 names. Bar examination As of July, 1925, the state board of bar examiners was conducting the bar examination. In 1931 the bar examination was given on July 15. Of the one hundred and three (103) persons who took the examination, forty five (45) passed. There were a number of applicants taking the examination for the second time. Minimum fee schedules Bar associations used to promulgate and enforce fee schedules as one of their more common activities. The Oregon State Bar Association promulgated a minimum fee schedule before World War II. The schedule set fee guidelines for a variety of common legal services. "For example, the schedule suggested that lawyers charge $250 for preparing an uncontested divorce. Simple wills and adoptions with no controversy are set at $30 and $100 respectively." Originally the proposal was to set minimum fees that would double in counties with more than 100,000 population, of which at that time there was only one, Multnomah County. Each member of the new bar association pledged not to charge less than the minimum schedule of fees, and not to associate with any attorney who did so. After adoption of the state-wide fee schedules in 1938, county bar associations were still free to adopt their own minimum fee schedules provided they were approved by the Board of Governors of the state bar. Marion County did so in December 1938. It "increased certain of the minimum fees from its depression-established schedule but in nearly all instances the new list remained below fees prescribed in the approved at the state bar convention [in Salem] last fall." The lawyers passed a motion stating their own county's fee schedule conformed better to the conditions in Washington County. By the early 1970s, these minimum fee schedules were being criticized as having the true purpose to provide "a minimum income level for lawyers above that which would prevail in a free market." The Oregon State Bar sought summary judgment in its favor, arguing that it was not liable under the "state action" and "learned profession" exemptions to the Sherman Antitrust Act. Former Communist Party members Applicants for admission to the bar were and remain required to establish that they are persons of good moral character. In the 1950s and early 1960s, membership in the Communist Party was considered highly suspect, and in at least one state (Florida) was considered, at least in dicta, to be per se grounds for denial of admission. In 1957, the United States Supreme Court ruled in Konigsberg vs. State Bar and in Schware v. Board of Bar Examiners that previous membership in the Communist Party could not by itself suffice to prevent a bar applicant from proving that he was a person of good moral character. In Oregon, Frank V. Patterson, passed the bar in 1953, but was denied admission because of his previous affiliation with the Communist Party, Aided by the American Civil Liberties Union, Patterson sought and was granted review in the United States Supreme Court, which reversed the Oregon Supreme Court, and ordered the Oregon court to review the matter in light of the then-recent Konigsberg and Schware decisions. On remand, the bar's decision to deny Patterson admission was upheld by the Oregon Supreme Court. Another applicant, Nick Chaivoe, who had allegedly been a Communist, had been denied admission to the bar in the early 1950s. (Chaivoe was eventually admitted to the bar in 1963.) Jolles was fully aware of the Patterson decision, and developed his legal strategy with that case in mind. The Oregon Supreme Court, finding that Jolles had abandoned his allegiance to the Communist Party, admitted him to the bar association on a 4-2 vote, with then-recently appointed Justice Arno Denecke recusing himself. Jolles still could not practice in federal court, because, although normally a matter of course, his application for admission to the bar of the U.S. District Court for Oregon was delayed for two years. == Incorporation of the bar as a public agency ==

Early proposals On January 3, 1933, it was reported that at a closed door meeting of the executive directors of the bar association, there had been a discussion of presenting to the legislature a proposal to incorporate the bar association and giving it disciplinary authority over its members. The measure was said to have had the objective of raising the standard of legal practice. Under the terms of the 1933 bill, all persons then entitled to practice law in the State of Oregon, including judges of the supreme, circuit, and the district courts, and, with their consent, the judges of the U.S. district court, would become members of the Oregon State Bar association. With the approval of the Oregon Supreme Court, the board of governors would have the power to appoint a committee to examine applicants and make recommendations to the supreme court for admission to practice law. According to a contemporary report, "objection to the measure centered on the contention that such legislation would hit at the 'little' lawyers and would not be workable in regard to the more prominent practitioners." The legislation took effect on June 12, 1935. Every active lawyer was required to be a member of the newly incorporated Oregon State Bar Association. In 1935 the annual membership fee was $3. Purpose of incorporation In August 1935, Oscar Hayter, one of the most prominent attorneys in the state, and soon to be one of the first board of governors of the new association, gave a speech to the Salem Rotary Club in which he outlined some of the goals of the incorporated bar. Hayter, who had been deeply involved in setting up the integrated bar, In addition to President Maguire, the first board of governors comprised attorneys Oscar Hayter, of Dallas, Circuit Court Judge James T. Brand, of Marshfield, Allan G. Carson, of Salem, H.H. DeArmond, of Bend, Colon R. Eberhard, of La Grande, A.A. Smith, of Baker, Arthur M. Geary, and Nicholas Jaureguy, both of Portland. In addition to practicing law, board member Jaurgegay taught, from 1922 to 1942, evidence, negotiable instruments, and trusts at Northwestern School of Law, in Portland, where he was said to have "set extremely high standards for himself and for his students." == Opposition to Supreme Court expansion ==

On February 5, 1937, President Franklin D. Roosevelt, frustrated by New Deal legislation being struck down by the Supreme Court on what were perceived by critics of the court to be dubious constitutional grounds, announced he would support legislation which, if enacted would increase the number of justices on the court from nine to up to fifteen. The formal name of the legislation was the Judicial Procedures Reform Bill of 1937, and it came to be called the "court-packing plan." After the announcement, an OSB committee sent out a poll to 2,200 members of the bar as to whether they supported or opposed the court-packing plan. On March 6, 1937, Frank P. Keenan, chairman of the committee, announced that 1,640 ballots had been returned, and these ran against the plan by a five to one ratio, specifically 266 votes for and 1,383 votes against. == Code of ethics ==

As initially organized, the bar association did not have a formal code of legal ethics. In 1907, at its seventeenth annual meeting, at the Pioneer Courthouse, the association declined to adopt a code. == Resignation from the bar ==

, and was readmitted to the bar ten years later. Early procedure Lawyers in the early years of the bar association could avoid disbarment by resignation, and this was done by two of the eight then facing charges, specifically Harold Pilkington and Lewis C. Garrigus. Garrigus was able to have himself reinstated to the bar in 1905. Harold Pilkington was sentenced to prison for two years for embezzlement, but he may have been able to have himself reinstated in 1914 despite his previous resignation, as there is reported to have a man of the same name having been admitted to the bar in that year. Only a few years later, the Oregon Supreme Court ruled that an attorney's resignation would no longer be effective if disbarment were pending. Form B resignation A Form B resignation is the functional equivalent of being disbarred from a Bar association, and means that the submitting member of the bar resigned while facing disciplinary charges from the bar tribunal. Members of the Oregon State bar who enter a Form B Resignation are not eligible to be readmitted to the bar again. Permanent disbarment Until December 31, 1995, disbarred lawyers could apply for reinstatement five years after the effective date of their disbarment. As of January 1, 1996, disbarment is permanent. Oregon is one of the few states where disbarment is automatically permanent, the others being Indiana, Ohio, and New Jersey. == Bar programs ==

Client Security Fund Purpose and procedure Like most other states, the Oregon State Bar Association has established a "Client Security Fund" which will reimburse clients, up to a certain amount, who are victims of their own lawyer's dishonesty. To be eligible for a CSF award, there must evidence of dishonesty in an established lawyer-client relationship or the lawyer must have acting in a fiduciary capacity related to the lawyer's practice of law. "Dishonesty" includes failing to refund fees where no work was done on the matter or where the work done was de minimis or of no value to the client. Decision to create fund In late September 1958, the bar association voted at its annual convention to adopt an indemnity plan to protect clients against losses of funds entrusted to a member of the profession. This was reported to have set "nation-wide legal history.". The 1963 editorial stated that "the inauguration of the client indemnity fund would not be an admission, tacit or otherwise, that there are crooks active in the practice of law In the state. Nor would it be an accusation against other members of the bar. It would affirm their responsibility to the public. It would be an assurance that lawyers as a whole are so proud of their profession, so confident of their fellows, that they are willing to tax themselves to protect their clients against the occasional misdeeds of a few." The bill was recommended by the Oregon State Bar. Renewed initiatives The controversial indemnity fund issue was taken up again at the bar convention in late September 1959. Bar president George L. Hibbard turned in a report to the bar that recommended adoption of the program. The purpose of the fund would be to reimburse clients suffering loss through defalcation, embezzlement, conversion, or misappropriation of funds by their lawyers. The 1967 Oregon Legislature enacted enabling legislation. This was later codified as the Client Security Fund Act. The Client Security Fund Act authorized the bar to adopt a plan by which clients who suffered financial losses because of dishonest conduct of bar members could be reimbursed. The funds would be raised primarily by a standard compulsory payment by all members of the bar. In 2012 and in 2019, the Client Security Fund was exhausted by the malfeasance of two attorneys who embezzled large amounts of client moneys from their own trust accounts. One of these lawyers stole over $3.4 million from clients, which was the worst fraud by a lawyer in Oregon history. The money came from insurance settlements that were supposed to have been paid to the lawyer's clients. Professional Liability Fund In 1977, the Oregon Legislature enacted legislation which gave the OSB Board of Governors authority to establish a professional liability fund for the purpose of insuring lawyers against malpractice lawsuits. The fund would be financed by an annual assessment on lawyers in private practice in Oregon. The resolution further provided that the required malpractice coverage "for all active members in the private practice of law, with the exception of patent attorneys, shall be obtained through" the Fund. PLF's practice management attorneys and attorney counselors provide confidential services to all Oregon lawyers. Interest on Lawyer Trust Accounts The Oregon State Bar's IOLTA Program (Interest on Lawyer Trust Accounts) began on a voluntary basis in 1983. In 1988, the bar members voted to make the IOLTA program mandatory, and the Oregon Supreme Court approved the necessary rule changes, effective May 1, 1989. Well-known Portland lawyer C. Henri Labbe was the vice-president. Oregon lawyers created the Modest Means Program to help moderate income Oregonians find affordable legal help. Eligibility for the program is based on the type of the legal matter, the applicant's income and assets, and the availability of participating attorneys. == Public Records Law ==

In March 1936, the board of governors of the newly-incorporated bar association declined to release the names of three attorneys who had received bar reprimands for unethical conduct, as well as the names of two other attorneys who had been exonerated. In 1973, the Oregon Legislature passed the Oregon Public Records Law. In June 1974, Russell Sadler, a reporter for the Salem Capital Journal sought disciplinary records related to lawyer and politician Jason Lee, who was standing as a candidate for a judgeship on the Oregon Court of Appeals. Oregon Attorney General Lee Johnson had recently ordered the bar association to produce records for another lawyer, also at the request of the Capital Journal, and the association had similarly refused. The newspaper wanted to see his disciplinary file to ascertain if there were other complaints on file regarding Lee. Oregon became the first state in the nation to provide complete access to all records, including grievances from clients. == Challenge to the unified bar ==

Supreme Court restriction on "non-germane" activities OSB is an "integrated" or "unified" bar, meaning that all lawyers in the state are required to belong to the association. As of 2020, thirty-one states and the District of Columbia have unified bars. In 1990, in the case of Keller v. State Bar of California, the Supreme Court held that a state could require lawyers to belong to an integrated bar association, but prohibited integrated bars from funding with mandatory dues "activities having political or ideological coloration which are not reasonably related to the advancement of [its regulatory] goals." The second was a joint supporting statement of seven Oregon affinity bar associations which specifically and repeated criticized President Donald Trump by name for having "catered to this white nationalist movement, allowing it to make up the base of his support and providing it a false sense of legitimacy." The statements were published on facing pages. A green margin band enclosed both statements within a single print area, making the two statements appear to be joined. According to one report, it was the second statement that "really set off" conservative critics. At the meeting of the Oregon State Bar's Board of Governors on April 20, 2018, the Bar's chief executive officer noted that the Board of Governors "did not formally adopt the statement by the specialty bar groups" but that "publishing the two statements together was 'ill-advised and confusing.'” Legal action against OSB In 2018, two lawsuits were brought against the Oregon State Bar, specifically Gruber v. OSB and Crowe v. OSB. In Crowe, the plaintiffs alleged that the statements in the Bar Bulletin were non-germane political advocacy, and for that reason, the requirement for mandatory membership in the bar association violated their rights to freedom of association under the First and Fourteenth Amendments to the constitution of the United States. Both cases were again appealed to the United States Court of Appeals for the Ninth Circuit, which issued decisions on August 28, 2024. The Court of Appeals dismissed Crowe's case against the Oregon State Bar on the grounds that the Oregon State Bar is an "arm of the state" that is immune from being sued, however the court also found that OSB officers (who Crowe also sued) are not immune from suit. Regarding the claims against these officers, the court found {{Blockquote The court then found that "[t]he remedy for this violation need not be drastic," and that "if OSB does engage in nongermane activities, in situations in which those activities might be attributed to its members it could include a disclaimer that makes clear that it does not speak on behalf of all those members." The Court of Appeals dismissed the claims against OSB in the Gruber case on the same immunity grounds as in the Crowe case, and dismissed the remainder of Gruber's claims (against OSB officers) in light of her resignation from OSB. Finally, the court upheld the district court's grant of summary judgment in favor of OSB officers with regard to Gruber's co-plaintiff's claims. == See also ==