In the Matter of Amendments ) ORDER NO. 99-103

The Oregon State Bar Board of Governors submitted to the Court an amendment to the Oregon State Bar Rules of Procedure (BR), by the addition of new rule BR 5.9. The Court considered the amendment at the public meeting of October 19, 1999.

IT HEREBY IS ORDERED that BR 5.9 is approved as set forth below, effective with the date of this order. Deleted material is bracketed and in italic print; new material is in bold print.

BR 5.9 Attorney Assistance Evidence

(a) Definition. For the purposes of this rule, an "attorney assistance program" is any treatment, counseling, training or remedial service, created under ORS 9.545 or otherwise, designed to provide assistance to attorneys who are suffering from impairment or other circumstances which may adversely affect their professional competence or conduct, or to provide advice and training to attorneys in practice management.

(b) Use of Evidence by Accused. Subject to the provisions of BR 5.1(a) and this rule, the accused may offer evidence at a disciplinary hearing concerning the accused's participation in or communication with an attorney assistance program. If the accused fails to provide timely notice to Disciplinary Counsel as required under BR 5.9(c), the accused may not offer evidence of the accused's participation in or communication with an attorney assistance program at the hearing.

(c) Prior Notice. If the accused intends to offer evidence at a hearing concerning the accused's participation in or communication with an attorney assistance program, the accused shall give written notice to Disciplinary Counsel of such intent, not less than 63 days prior to the date the hearing is scheduled to commence. For good cause shown, the trial panel chairperson may permit the accused to give the notice within a shorter period of time. The notice shall specify the identity of the attorney assistance program, the nature of the evidence that will be offered, the names of the service providers with whom the accused dealt, and the names and addresses of witnesses the accused intends to call to present the evidence. The notice shall also include the consent or waiver required by BR 5.9(d). The accused shall provide a copy of the notice to the attorney assistance program.

(d) Discovery. In the event the accused provides a notice to Disciplinary Counsel under BR 5.9(c), Disciplinary Counsel may conduct discovery concerning the accused's participation in or communication with the attorney assistance program. The accused shall provide any consent or waiver necessary to permit Disciplinary Counsel to obtain discovery from the attorney assistance program or its service providers at the time the accused provides the notice required by BR 5.9(c). Questions regarding the permissible scope of discovery under this rule shall be resolved by the trial panel chairperson on motion pursuant to BR 4.5(c).

(e) Discovery not Public. Records and information obtained by Disciplinary Counsel through discovery under this rule shall not be subject to public disclosure, and shall be disclosed by the parties only in the disciplinary proceeding.

(f) Use of Evidence by Bar. The Bar shall have the right to introduce evidence obtained through discovery under this rule only if the accused introduces evidence of participation in or communication with an attorney assistance program.

(g) Enforcement. The trial panel chairperson may issue a protective order and impose sanctions to enforce this rule pursuant to BR 4.5(d) and (e).

DATED THIS ___ day of November 1999.


Wallace P. Carson, Jr.

Chief Justice

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