How Oregon’s public defense crisis could become a direct tax on lawyers

Bad news for Oregon’s legal community: At a recent public Bar meeting, a representative of the agency casually indicated that there were a lot of malpractice claims rolling in from victims of inadequate public defense — due not only to the statewide shortage of such lawyers, but also to the apparent incompetence of those who rushed in to help with the caseload.

The message was quite clear: Those attorneys are doing a bad job.

Oregon’s public defense shortfall — actually the state’s constitutional crisis — made national news last year when the American Bar Association issued a report asserting that there were less than a third of the needed public defense attorneys to provide “adequate representation” to Oregon’s indigent criminal defendants.¹

After being confronted with that report, former Supreme Court Chief Justice Martha Walters’ big idea was to ask everyone to grab a mop, even if they did “not have the experience necessary” for such work. And now we see that the crisis actually worsened under her leadership.

This is now poised to become an effective tax on attorneys: Oregon is the only state with mandatory malpractice insurance, but it’s operated by the Oregon State Bar, and funded entirely by Oregon lawyers.

When more malpractice claims are filed and paid out— due to attorneys working outside of their area of expertise — it will lead to higher insurance premiums.

The Bar’s barely-legal insurance scheme is already wildly overpriced and not at all competitive with the free market. An influx of inadequate-public-defense-related claims could provide the tipping point to push sentiment against the agency, and possibly even provide a basis for an antitrust suit.

I heard this news at the April 14th Oregon State Bar (OSB) Board of Governors (BOG) meeting — the first BOG meeting I’ve ever attended. The Bar official was likely Megan Livermore, the CEO of their insurance company, the PLF.²

The meeting minutes make no mention of this bombshell, but I can attest that the news briefly stunned the group into silence. I would love to upload the clip, but the Bar has claimed that it does not record its public meetings.

My delay in reporting this news was due entirely to the time I spent urging Oregon Public Broadcasting to write about it, as a continuation of their series of excellent reporting on the crisis.

¹ According to the Sixth Amendment Center, “the right to counsel means every person who is accused of a crime is entitled to have an attorney provided at government expense,” and the attorney must be effective, not just “a warm body with a bar card.”

² The meeting was held in person and via Zoom. It was difficult at times for a remote attendee like myself to identify who was speaking.