IN THE SUPREME COURT OF THE STATE OF OREGON
|In the Matter of the Amendment to the
OREGON STATE BAR
RULES OF PROCEDURE
| ) |
|ORDER NO. 07-018
ORDER AMENDING OREGON
STATE BAR RULES OF
At its public meeting on April 3, 2007, the court considered and approved amendments to the following Bar Rules of Procedure: BR 1.4, BR 1.10, BR 1.12 and 1.8, BR 2.1(f)(2), BR 2.4(b)(2), BR 4.2, BR 4.9, BR 5.3(a), BR 8.2(c)(iii), BR 10.7, and BR 12.2. These rules were approved as amended by the Board of Governors addresing outdated citations or errors found in the existing rules. Deleted text is in brackets and italic print; new text is in boldface print.
IT IS HEREBY ORDERED that the attached revised Oregon State Bar Rules of Procedure are approved and effective immediately.
Dated this 26th day of April, 2007.
Paul J. De Muniz
Proposed Amendments to the Bar Rules of Procedure
Adopted by Board of Governors 2/23/07
Rule 1.4 Jurisdiction; Choice of Law.
(a) Jurisdiction. An attorney admitted to the practice of law in Oregon, and any attorney specially admitted by a court or agency in Oregon for a particular case, is subject to the Bar Act and these rules, regardless of where the attorney's conduct occurs. The Supreme Court's jurisdiction over matters involving the practice of law by an attorney shall continue whether or not the attorney retains the authority to practice law in Oregon, and regardless of the residence of the attorney. An attorney may be subject to the disciplinary authority of both Oregon and another jurisdiction in which the attorney is admitted for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of Oregon, the rules of professional conduct to be applied shall be as follows:
(1) For conduct in connection with a proceeding in a court before which an attorney has been admitted to practice, either generally or for purposes of that proceeding, the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and
(2) For any other conduct,
(A) If the attorney is licensed to practice only in Oregon, the rules to be applied shall be the Oregon Code of Professional Responsibility and the Bar Act; and
(B) If the attorney is licensed to practice in Oregon and another jurisdiction, the rules to be applied shall be the rules of the jurisdiction in which the attorney principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the attorney is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.
(c) Application. The provisions of BR 1.4 shall apply to conduct occurring on or before December 31, 2004. Conduct occurring on or after January 1, 2005, shall be governed by Rule of Professional Conduct 8.5.
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Rule 1.8 Service Methods.
(a) Except as provided in Rule 4.2 or Rule 8.9, any pleading or document required under these rules to be served on an accused or applicant shall be
(1) sent to the accused or applicant, or his or her attorney if the accused or applicant is represented, by first class mail addressed to the intended recipient at the recipient's last designated business or residence address on file with the Bar, or
(2) served on the accused or applicant by personal or office service as provided in ORCP 7D(2)(a)-(c).
(b) Any pleading or document required under these rules to be served on the Bar shall be sent by first class mail addressed to Disciplinary Counsel at the Bar's business address or served by personal or office service as provided in ORCP 7D(2)(a)-(c).
(c) A copy of any pleading or document served on Bar Disciplinary Counsel shall also be provided to Bar Counsel, if one has been appointed, by first class mail addressed to his or her last designated business address on file with the Bar or by personal or office service as provided in ORCP 7D(2)(a)-(c).
(d) Service by mail shall be complete on deposit in the mail except as provided in BR 1.12[(c)].
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Rule 1.10 Filing.
(a) Any pleading or document to be filed with the Disciplinary Board Clerk shall be delivered in person or by mail to the Disciplinary Board Clerk, Oregon State Bar, 5200 S.W. Meadows Road, P.O. Box 1689, Lake Oswego, Oregon 97035-0889. Any pleading or document to be filed with the Supreme Court shall be delivered to the State Court Administrator, Appellate Courts Records Section [Case Records Division], 1163 State Street [Supreme Court Building], Salem, Oregon 97301-2563 . Any pleading or document to be filed with the State Chair of the Disciplinary Board, a regional chair or a trial panel chair shall be delivered to the intended recipient at his or her last designated business or residence address on file with the Bar.
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Rule 1.12 [Resident Agent For Service Of Bar Pleadings Or Documents;] Service Of Bar Pleadings Or Documents on Out-of-State Attorney [In Absence Of Resident Agent].
[(a) All attorneys who pursuant to BR 1.11 designate a business address or residence address which is not located within the State of Oregon must additionally designate, on a form approved by the Oregon State Bar, an in-state agent for service of Bar pleadings and documents who shall be a resident active member of the Oregon State Bar. The designation shall include a street address for the designated in-state agent.
(b) It is the duty of all attorneys who have designated an in-state agent for service to promptly notify the Oregon State Bar in writing of any change in the name or address of his or her in-state agent. A new designation shall not become effective until actually received by the Oregon State Bar.
(c) Service upon the in-state agent of any Bar pleading or document in compliance with these Rules shall be deemed the equivalent of personal service upon the attorney. If an attorney with a designated address which is not located within the State of Oregon has no in-state agent on file with the Bar, mailing any such pleading or document by first class mail to the attorney's last designated business or residence address on file with the Bar shall be deemed the equivalent of personal service upon the attorney. Service by mail to the attorney at his or her last designated address shall be complete seven days after such mailing. Proof of such service by mail shall be by certificate showing the date of deposit in the mail.]
(a) If an attorney, pursuant to BR 1.11, has designated an address which is not located within the State of Oregon, a formal complaint filed under BR 4.1 or a statement of objections filed under BR 8.9 may be:
(1) personally served upon the attorney; or
(2) served on the attorney by certified mail, return receipt requested, to the attorney's last designated address on file with the Bar, in which case service shall be complete on the date on which the attorney signs a receipt for the mailing.
(b) If service under either BR 1.12(a)(1) or BR 1.12(a)(2) is attempted but cannot be completed, a formal complaint or a statement of objections may be served on the attorney by first class mail to the attorney's last designated address on file with the Bar, in which case service shall be complete seven days after such mailing. Proof of such service by mail shall be by certificate showing the date of deposit in the mail.
(c) Service of all other pleadings or documents on an attorney who has designated an address which is not located within the State of Oregon shall comply with BR 1.8(a).
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Rule 2.1 Qualifications of Counsel.
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(f)(2) Subject to the provisions of RPC 1.7 [DR 5-105], and not withstanding the provisions of BR 2.1(b), (c) or (d), an attorney may serve as Bar Counsel or represent an accused or applicant even though a firm member is currently serving as Bar Counsel or representing an accused or applicant, provided firm members are not opposing counsel in the same proceeding.
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Rule 2.4 Disciplinary Board.
(a) Composition. A disciplinary board shall be appointed by the Supreme Court. The Disciplinary Board shall consist of a state chairperson, 6 regional chairpersons, and 6 additional members for each Board region except for Region 1 which shall have 9 additional members, Region 5 which shall have 23 additional members, and Region 6 which shall have 11 additional members. Each regional panel shall contain 2 members who are not attorneys, except for Region 1 which shall have appointed to it 3 members who are not attorneys, Region 5 which shall have appointed to it 8 members who are not attorneys, and Region 6 which shall have appointed to it 4 members who are not attorneys. The remaining members of the Disciplinary Board shall be resident attorneys admitted to practice in Oregon at least 3 years. Except for the state chairperson who shall be an at-large appointee, members of each regional panel shall either maintain their principal office within their respective region or maintain their residence therein. The members of each region shall constitute a regional panel. Trial panels shall consist of 2 attorneys and 1 public member, except as provided in BR 2.4(f)(3). The state chairperson, regional chairpersons and trial panel chairpersons shall be attorneys.
(1) Disciplinary Board members shall serve terms of 3 years and may be reappointed. State and regional chairpersons shall serve in that capacity for terms of 1 year, subject to reappointment by the Supreme Court.
(2) Notwithstanding [the number of Disciplinary Board members established in] BR 2.4(a), the powers, jurisdiction and authority of Disciplinary Board members shall continue beyond the expiration of their appointment or after their relocation to another region for the time required to complete the cases assigned to them during their term of appointment or prior to their relocation, and until a replacement appointment has been made by the Supreme Court. The state chairperson and the regional chairpersons shall serve until a replacement appointment has been made by the Supreme Court.
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Rule 4.2 Service of Formal Complaint.
(a) Manner of Service of Formal Complaint. A copy of the formal complaint, accompanied by a notice to answer it within 14 days, may be personally served on the accused[, his or her in-state agent] or as otherwise permitted by Bar Rule 1.12. The notice to answer shall be substantially the form set forth in BR 12.2 [BR 12.3].
(b) Alternative Service of Formal Complaint. The Bar may request the Supreme Court to authorize the service of a formal complaint and notice to answer on the Accused pursuant to ORCP 7D(6).
(c) Proof of Service of Complaint. Proof of personal service shall be made in the same manner as in a case pending in a circuit court.
(d) Service of Amended Formal Complaint. An amended formal complaint may be served by mail, provided the original formal complaint was served upon the accused in the manner provided by BR 4.2(a) or (b).
(e) Disregard of Error. Failure to comply with any provision of this rule or BR 1.12 shall not affect the validity of service if the Accused received actual notice of the substance and pendency of the disciplinary proceedings.''
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Rule 4.9 Mediation.
(a) Mediation. An accused and the Bar may employ the services of a mediator, other than a member of the Disciplinary Board, to determine the potential for, and assist the parties in negotiating, a settlement of issues in dispute. Mediation is voluntary; both parties must agree to participate in the mediation. The SPRB shall decide for the Bar whether to mediate.
(b) Time of Mediation. Mediation may occur at any time after the filing of the formal complaint, provided that the mediation shall not delay a hearing before a trial panel scheduled in accordance with BR 5.4. After a trial panel renders a written opinion in the proceeding pursuant to BR 2.4(i)(2), mediation may occur only if authorized by the State Chairperson of the Disciplinary Board.
(c) Discipline by Consent. A stipulation for discipline or no contest plea negotiated through mediation is subject to approval by the SPRB, and the Disciplinary Board or the Supreme Court, as the case may be, as set forth in BR 3.6, before it is effective.
(d) Costs. The expense of mediation shall be shared equally by an accused and the Bar unless the parties agree otherwise.
(e) Confidentiality. Mediation communications, as defined in ORS 36.110[(8)], are confidential and may not be disclosed or admitted as evidence in subsequent adjudicatory proceedings, except as provided by ORS 36.226.
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Rule 5.3 Location of Hearing; Subpoenas; Testimony.
(a) Location. In the trial of any disciplinary proceeding, the hearing shall be held either in the county in which the person charged maintains his or her office for the practice of law or other business, in which he or she resides, or in which the offense is alleged to have been committed, in the discretion of the trial panel chairperson. With the consent of the accused, the hearing may be held elsewhere. In the trial of a disciplinary proceeding involving an accused who does not maintain an office or residence in Oregon and the alleged misconduct either did not occur in Oregon or occurred in more than one county in Oregon, or in the trial of any contested reinstatement matter, the hearing shall be held at a location designated by the state chairperson of the Disciplinary Board.
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Rule 8.2 Reinstatement -- Informal Application Required.
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(c) Exceptions. Any applicant otherwise qualified to file for reinstatement under this rule but who
(i) during the period of the member's resignation, has been convicted in any jurisdiction of an offense which is a misdemeanor involving moral turpitude or a felony under the laws of this state, or is punishable by death or imprisonment under the laws of United States; or
(ii) during the period of the member's suspension, resignation or inactive status, has been suspended for professional misconduct for more than six months or has been disbarred by any court other than the Supreme Court; or
(iii) has engaged in conduct which raises issues of possible violation of the Bar Act, [or] Code of Professional Responsibility or Rules of Professional Conduct;
shall be required to seek reinstatement under BR 8.1. Any applicant required to apply for reinstatement under BR 8.1 because of this rule shall pay all fees, assessments and penalties due and delinquent at the time of the applicant's resignation, suspension or transfer to inactive status, and an application fee of $400 to the Bar at the time the application for reinstatement is filed, together with any payments due under BR 8.6.
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Rule 10.7 Costs And Disbursements.
(a) Costs and Disbursements. ''Costs and disbursements'' are actual and necessary (1) service, filing and witness fees; (2) expenses of reproducing any document used as evidence at a hearing, including perpetuation depositions or other depositions admitted into evidence; (3) expenses of the hearing transcript, including the cost of a copy of the transcript if a copy has been provided by the Bar to an accused without charge; and (4) the expense of preparation of an appellate brief in accordance with ORAP 13.05[(5)(a)]. Lawyer fees are not recoverable costs and disbursements either at the hearing or on appeal nor are prevailing party fees recoverable by any party.
(b) Allowance of Costs and Disbursements. In any contested admission, discipline or contested reinstatement proceeding, costs and disbursements as permitted in BR 10.7(a) may be allowed to the prevailing party by the court or Disciplinary Board. An accused or applicant prevails when the charges against the accused are dismissed in their entirety or the applicant is unconditionally admitted or reinstated to the practice of law in Oregon. The bar shall be considered to have prevailed in all other cases.
(c) Recovery After Offer of Settlement. An accused may, at any time up to 14 days prior to hearing, serve upon Bar Counsel and Disciplinary Counsel an offer by the accused to enter into a stipulation for discipline or no contest plea under BR 3.6. In the event the written offer by an accused to enter into a stipulation for discipline or no contest plea is rejected by the SPRB, and the matter proceeds to hearing and results in a final decision of the Disciplinary Board or of the court imposing a sanction no greater than that to which the accused was willing to plea no contest or stipulate based on the charges the accused was willing to concede or admit, the Bar shall not recover and the accused shall recover actual and necessary costs and disbursements incurred after the date the accused's offer was rejected by the SPRB.
(d) Procedure for Recovery and Collection. The procedure set forth in the Rules of Appellate Procedure of the Supreme Court regarding the filing of cost bills and objections thereto shall be followed except that in matters involving final decisions of the Disciplinary Board cost bills and objections thereto shall be resolved by the state chairperson of the Disciplinary Board. The cost bill and objections thereto shall be filed with the Disciplinary Board Clerk with proof of service on the state chairperson of the Disciplinary Board and the other party and shall not be due until 21 days after the date a trial panel's decision is deemed final under BR 10.1. The procedure for entry of judgments for costs and disbursements as judgment liens shall be as provided in ORS 9.536[(5)].
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Rule 12.2 Notice to Answer.
A copy of the formal complaint (statement of objections), accompanied by a notice to answer it within a designated time, shall be served on the accused (applicant). Such notice shall be in substantially the following form:
NOTICE TO ANSWER
You are hereby notified that a formal complaint against you (statement of objections to your admission) (statement of objections to your reinstatement) has been filed by the Oregon State Bar, a copy of which formal complaint (statement of objections) is attached hereto and served upon you herewith. You are further notified that you may file with the Disciplinary Board Clerk, with a service copy to Disciplinary Counsel, [Counsel] your verified answer within fourteen (14) days from the date of service of this notice upon you. In case of your default in so answering, the formal complaint (statement of objections) shall be heard and such further proceedings had as the law and the facts shall warrant.
(The following paragraph shall be used in a disciplinary proceeding only:)
You are further notified that an attorney accused of misconduct [you] may, in lieu of filing an [your] answer [at this time], elect to file with Disciplinary Counsel of the Oregon State Bar, [your] a written resignation from membership in the Oregon State Bar. Such a resignation must comply with BR 9.1 and be in the form set forth in BR 12.7. [You are not required or compelled to submit a resignation.] You should consult an attorney of your choice for further information about resignation. [before electing to do so. If you elect to resign, a resignation (Form B) in substantially the form appended hereto must be completed, executed, witnessed and filed with Disciplinary Counsel within the time granted to you for answer to the complaint. If your resignation is filed in substantially the form appended hereto, it will be submitted by Disciplinary Counsel to the Supreme Court of the State of Oregon, since that body only may accept a resignation. If you elect to resign, please refer to the attached formal complaint, incorporate it by reference in the resignation form and insert in the resignation form your current, correct residence address. If your resignation is accepted by the Supreme Court, you need not file an answer . . . .]