Disassociation

Ideas for breaking up the Oregon State Bar

Yesterday, a group of lawyers lost another battle in the federal lawsuit against their licensor, the Oregon State Bar. The lawsuit stemmed from the Bar’s publication of statements which condemned “the resurgence of white nationalism” and “the normalization of violence and racism.”

In brief, the lawyers asserted that the Bar’s denunciations violated their First Amendment right to freedom of association: Membership in the Oregon State Bar is mandatory, and the lawyers viewed the Bar’s statements as political speech that was not germane to the Bar’s regulatory mission.

And to be clear, if you’re actually for free speech, you’re for it in every form, even if you find it offensive.

The key plaintiff, Lt. Col. Daniel Crowe, confirmed that the decision will be appealed and “will probably need to be resolved at the U.S. Supreme Court.” Crowe also stated that the group is “committed to the long haul,” and “appreciate the good will of every Oregonian who places the Rule of Law above ideology, politics, and control for control’s sake.”

While we wait to see how the case is ultimately resolved, here are some other ideas for litigation, with an eye towards breaking up the Oregon State Bar into flushable chunks.

Nongermane lobbying

At the core of any successful suit against the Bar, there will need to be a showing that the agency is not actually working to regulate and advance the legal profession. This could include any lobbying efforts made by the agency, that are not in advancement of the Bar’s stated goals.

Take a look at SB 768, an omnibus bill that the Bar wrote and pushed for in 2021, which effectively created a bubble of protection for the Bar — and I don’t mean the Bar’s 15,000+ licensees, I mean the agency’s 120 employees and officers.

For instance, the Bar’s bill created an entirely new provision of law which allowed for members of the Board of Governors to remove another member by two-thirds vote, a power that previously only existed for that member’s constituency — i.e. Oregon lawyers from a member’s region. (It’s almost like taxation without representation.)

Usurping the rights of Oregon State Bar licensees in a region.

Another provision of SB 768 entirely exempted the agency from law requiring the recording of public meetings.

Yet another provision suggested that the Bar was concerned with liability for its staff and officers that could stem from the Client Security Fund awards it was making. This was apparently related to threatened litigation by a former attorney who claimed that the Bar had used such awards to bribe a witness.

No public meeting record, and indemnity from civil liability for claims related to CSF awards — which have been credibly described as bribery.

The Bar’s bill also abdicated one of its key duties of public protection — custodianship — by pushing it downwards onto its licensees. Any licensed attorney may now petition the court to take custody of a non-practicing attorney’s files. Previously that power rested only with the Bar, who used it sparingly, most recently when it took custodianship over the practice of serial fraudster Lori Deveny, after she refused to surrender her files to her successor post-resignation.

This relinquishment of its duties strongly suggests that the Bar believes that literally anyone would do a better job of protecting the public from malevolent attorneys. I agree with them.

The custodianship statutes are an important tool in public protection. But the Bar would prefer that the onus not be on the Bar.

Do any of the provisions of SB 768 sound as though they were designed to advance the legal profession or regulate the legal profession? Do secret Bar meetings that are exempt from public records laws protect the public or inspire trust? Clearly not. This constitutes nongermane lobbying.

Politically motivated discipline and protection

Oregon lawyers depend upon the Bar to act in an unbiased and neutral manner when it comes to Bar complaints. As such, no licensees should be singled out for discipline or protected from discipline based upon their connections (or lack of) or the connections of complainants.

Unfortunately, the Bar is happy to mint and prosecute a boogeyman when pressed-upon by influential complainants; and the Bar is equally happy to work overtime to protect the interests of its closest friends, even when they are under investigation for crimes.

And no, these are not one-offs.

Special interests

It is unacceptable for the Bar to engage in political or ideological activities that are not reasonably related to the agency’s regulatory mission.

It’s therefore hard to ignore the fact that the Bar has been effectively overtaken by the Oregon Women Lawyers specialty bar association (OWLS).

The Bar’s monthly magazine reads like an OWLS newsletter, and often features articles with no particular relevance to the practice of law. (As an aside, the woman on the cover of this issue has been featured in other Bar articles, including one written about her stand-up comedy just a year earlier.)

More alarmingly, the Bar’s now-former General Counsel Amber Hollister abused her position to paint a false narrative of male lawyers being responsible for a spike in financial claims to the Bar. In reality it was almost entirely due to Lori Deveny and another female lawyer.

While diversity initiatives are germane (because they are “aimed at creating a fair and equal profession for minority, women, and LGBT attorneys, which is a form of regulating the legal profession”), the Bar’s conduct goes well beyond “diversity initiatives.” It’s outright sexist.

Bonus: Professional Liability Insurance

While it may not work to break up the Bar, tackling the Bar’s insurance division would take the wind out of the agency’s sails, and actually offer a measure of protection to the public and Oregon attorneys.

Currently, all lawyers must carry mandatory malpractice insurance. This would be great if only the mandatory malpractice insurance wasn’t provided exclusively through the Oregon State Bar.

In the late 80’s, a brave lawyer sued the Bar over their insurance scheme, contending that it violated the Sherman Antitrust act, among other things. He lost, but the dissenting opinion provides a virtual roadmap to get rid of the Bar’s insurance division (the Professional Liability Fund) once and for all, and replace it with insurance obtained from the free market.

Virtually everything that the dissenting opinion warned of has come to fruition, and notably, the Bar has been paying out non-covered claims in certain cases — another clear sign of improper politics and connections.

The icing on the cake is that the Bar’s Bill SB 768 exempted the Bar’s insurance division from Oregon’s insurance code.