IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of Additions
and Amendments to the
OREGON STATE BAR
RULES OF PROCEDURE
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ORDER NO. 03-052

ORDER ADDING TO AND
AMENDING THE OREGON
STATE BAR RULES OF PROCEDURE

At its public meeting on June 3, 2003, the Court considered and adopted certain additions and amendments to the Oregon State Bar Rules of Procedure.

IT HEREBY IS ORDERED that, effective August 1, 2003, the following additions and amendments to Title 2 of the Oregon State Bar Rules of Procedure, as set out below (new text in boldface; deleted text in brackets and italics), are approved.


TITLE 2. STRUCTURE AND DUTIES

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Rule 2.3 Local Professional Responsibility Committees And State Professional Responsibility Board.

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(b) SPRB.

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(3) Authority.

(A) The SPRB shall have the authority to dismiss complaints, allegations or instances of alleged misconduct against attorneys, refer matters to Disciplinary Counsel or LPRCs for investigation, issue admonitions for misconduct, refer matters to the State Lawyers Assistance Committee, approve and supervise diversion agreements, institute disciplinary proceedings against any attorney, or take other action within the discretion granted to the SPRB by these rules.

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Rule 2.5 [Investigation Of Complaints] Intake and Review of Inquiries and Complaints by Client Assistance Office.

(a) Client Assistance Office. The Bar shall establish a client assistance office, separate from that of Disciplinary Counsel, that shall receive and review all inquiries and complaints, oral and written, about the conduct of attorneys.

(1) If an inquiry or complaint, either on its face or after investigation by the client assistance office, does not raise an actual complaint of misconduct, the client assistance office will retain the inquiry or complaint and attempt to resolve for the person making the inquiry or complaint the concerns expressed therein, to the extent possible and as resources permit. A decision by the client assistance office that an inquiry or complaint does not raise an actual complaint of misconduct may be appealed to General Counsel. The decision of General Counsel is final.

(2) If an inquiry or complaint does raise an actual complaint of misconduct, it shall be considered a disciplinary complaint and the client assistance office shall refer the matter to Disciplinary Counsel.

(b) Actual Complaint of Misconduct Defined. An actual complaint of misconduct exists when the client assistance office determines that there is credible evidence to support an allegation that misconduct has occurred.

Rule 2.6 Investigations [Of Complaints].

(a) [Complaints To Be In Writing. All complaints made against an attorney shall be in writing and shall be referred to Disciplinary Counsel, who shall evaluate the information contained in the complaint. If the facts alleged do not raise an arguable complaint of misconduct, Disciplinary Counsel shall, within 14 days after receipt of the complaint, dismiss the complaint and notify the complainant and the attorney in writing of the dismissal. A complainant may contest in writing the action taken by Disciplinary Counsel in dismissing his or her complaint, in which case Disciplinary Counsel shall submit a report on the complaint to the SPRB at a scheduled meeting. The SPRB shall thereafter take such action as it deems appropriate on such complaint.]

[(b)] Review by Disciplinary Counsel.

(1) For disciplinary complaints referred to Disciplinary Counsel by the client assistance office pursuant to BR 2.5(a)(2), [If the facts alleged raise an arguable complaint of misconduct,] Disciplinary Counsel shall, within 14 days after receipt of the complaint, mail a copy of said complaint to the attorney, if the client assistance office has not already done so, and notify the attorney that he or she must respond to the complaint in writing to Disciplinary Counsel within 21 days of the date Disciplinary Counsel [mailed the complaint to the attorney] requests such a response. Disciplinary Counsel may grant an extension of time to respond for good cause shown upon the written request of the attorney. An attorney need not respond to the complaint if he or she provided a response to the client assistance office and is notified by Disciplinary Counsel that further information from the attorney is not necessary.

(2) If the attorney fails to respond within the time allowed, Disciplinary Counsel may refer the complaint to the chairperson of an appropriate LPRC within 14 days of the time set for the response. The procedure set forth in BR [2.5(e)] 2.6(d) shall be followed. Disciplinary Counsel shall inform the complainant and the attorney in writing of this action.

(b) [(c)] Dismissal by Disciplinary Counsel. If, after considering a disciplinary [the] complaint, the response of the attorney, and any additional information deemed relevant, Disciplinary Counsel determines that probable cause does not exist to believe misconduct has occurred, the complaint shall be dismissed. The complainant and the attorney shall be notified in writing by Disciplinary Counsel of the dismissal. A complainant may contest in writing the action taken by Disciplinary Counsel in dismissing his or her complaint, in which case Disciplinary Counsel shall submit a report on the complaint to the SPRB at a scheduled meeting. The SPRB shall thereafter take such action as it deems appropriate on such complaint.

(c) [(d)] Review by SPRB.

(1) If [the attorney furnishes a response from which] Disciplinary Counsel determines that misconduct may be involved, the complaint shall be referred by Disciplinary Counsel to an appropriate LPRC for further investigation, or referred by Disciplinary Counsel to the SPRB at a scheduled meeting. If the complaint is referred to an LPRC by Disciplinary Counsel, the procedure specified in BR [2.5(e)] 2.6(d) shall be followed. Otherwise, the SPRB shall evaluate the complaint based on the report of Disciplinary Counsel to determine whether probable cause exists to believe misconduct has occurred. The SPRB shall either dismiss the complaint, refer it to an LPRC, admonish the attorney, authorize Disciplinary Counsel to negotiate and enter into a diversion agreement pursuant to BR 2.10, approve the filing of a formal complaint by the Bar against the attorney, or take action within the discretion granted to the SPRB by these rules.

(A) If the SPRB determines that probable cause does not exist to believe misconduct has occurred, the complaint shall be dismissed and the complainant and the attorney shall be notified of the dismissal in writing by Disciplinary Counsel.

(B) If the SPRB determines that the attorney should be admonished, such procedure shall be initiated within 14 days of the SPRB's meeting. If an attorney refuses to accept the admonition within the time specified by Disciplinary Counsel, a formal complaint shall be filed by the Bar against the attorney. Disciplinary Counsel shall notify the complainant and the attorney in writing of this action.

(C) If the SPRB determines that the complaint should be investigated further, Disciplinary Counsel shall conduct the investigation or submit the complaint to the appropriate LPRC within 14 days of the SPRB's meeting. Disciplinary Counsel shall notify the complainant and the attorney in writing of this action.

(d) [(e)] LPRC Investigations and Reports.

(1) The chairperson of the LPRC shall cause an investigation of the complaint to be conducted and completed within 63 days of the chairperson's receipt of the referral from Disciplinary Counsel.

(2) The LPRC shall file a report with Disciplinary Counsel within 14 days after the investigation is completed. The report shall contain the specific findings and recommendations of the LPRC.

(e) [(f)] Further Review by SPRB.

(1) Disciplinary Counsel shall submit the LPRC's report to the SPRB at a scheduled meeting. The SPRB shall evaluate the complaint based on the LPRC's report and the report of Disciplinary Counsel to determine whether probable cause exists to believe misconduct has occurred. The SPRB shall either dismiss the complaint, have it investigated further, admonish the attorney, authorize Disciplinary Counsel to negotiate and enter into a diversion agreement pursuant to BR 2.10, approve the filing of a formal complaint against the attorney, or take action within the discretion granted to the SPRB by these rules.

(A) If the SPRB determines that probable cause does not exist to believe misconduct has occurred, the complaint shall be dismissed and the complainant and the attorney shall be notified of the dismissal in writing by Disciplinary Counsel.

(B) If the SPRB determines that the attorney should be admonished, such action shall be initiated within the time set forth in BR [2.5(d)] 2.6(c)(1)(B). If an attorney refuses to accept the admonition within the time specified by Disciplinary Counsel, a formal complaint shall be filed by the Bar against the attorney. Disciplinary Counsel shall notify the complainant and the attorney in writing of this action.

(C) If the SPRB determines that further investigation is needed, Disciplinary Counsel shall conduct the investigation or, within 14 days of the SPRB's meeting, refer the matter to the chairperson of the appropriate LPRC which shall conduct a further investigation in accordance with BR [2.5(e)] 2.6(d). The further investigation by an LPRC shall be completed within 28 days and a report shall be filed with Disciplinary Counsel within 7 days after the further investigation is completed. Disciplinary Counsel shall notify the complainant and the attorney in writing of this action. The report of the further investigation shall be submitted to the SPRB at a scheduled meeting, at which the SPRB shall take action in accordance with BR [2.5(f)]2.6(e)(1).

(2) The SPRB may grant to an LPRC additional time to investigate a complaint if a request for additional time with the reasons therefor is submitted by the chairperson of the LPRC to Disciplinary Counsel for presentation to the SPRB. Disciplinary Counsel shall notify the attorney and the complainant in writing of the action taken by the SPRB on any such request.

(f)[(g)] Reconsideration; Discretion to Rescind.

(1) A decision by the SPRB to dismiss a complaint or allegation of misconduct against an attorney shall not preclude reconsideration or further proceedings on such complaint or allegation if evidence not available or submitted at the time of such dismissal justifies, in the judgment of not less than a majority of SPRB, such reconsideration or further proceedings.

(2) A decision by the SPRB to file a formal complaint against an attorney for misconduct may be rescinded by the SPRB only when, to the satisfaction of a majority of the entire SPRB, good cause exists. Good cause is:

(A) new evidence which would have clearly affected the SPRB's decision to file a formal complaint; or

(B) legal authority, not known to the SPRB at the time of its last consideration of the matter, which establishes that the SPRB's decision to file a formal complaint was incorrect.

(g) [(h)] Approval of Charges.

(1) If the SPRB determines that a formal complaint should be filed against an attorney, or if an attorney rejects an admonition offered by the SPRB, Disciplinary Counsel may appoint Bar Counsel. The attorney and the complainant shall be notified in writing by Disciplinary Counsel of such action.

(2) Notwithstanding a determination by the SPRB that probable cause exists to believe misconduct has occurred, the SPRB shall have the discretion to direct that no further action on a complaint or allegation of misconduct be taken by the Bar if one or more of the following circumstances exist: the attorney is no longer an active member of the Bar or is not engaged in the practice of law, and is required under BR 8.1 to demonstrate good moral character and general fitness to practice law before resuming active membership status or the practice of law in Oregon; other disciplinary proceedings are pending that are likely to result in the attorney's disbarment; other disciplinary charges are authorized or pending and the anticipated sanction, should the Bar prevail on those charges, is not likely to be affected by a guilty finding in the new matter or on an additional charge; or formal disciplinary proceedings are impractical in light of the circumstances or the likely outcome of the proceedings. An exercise of discretion under this rule to take no further action on complaint or allegation of misconduct shall not preclude further consideration or proceedings by the SPRB on such complaint or allegation in the future.

(3) Notwithstanding a determination by the SPRB that probable cause exists to believe misconduct has occurred, the SPRB shall have the discretion to dismiss a complaint or allegation of misconduct if the SPRB, considering the facts and circumstances as a whole, determines that dismissal would further the interests of justice and would not be harmful to the interests of clients or the public. Factors that the SPRB may take into account in exercising its discretion under this rule include, but are not limited to: the attorney's mental state; whether the misconduct is an isolated event or part of a pattern of misconduct; the potential or actual injury caused by the attorney's misconduct; whether the attorney fully cooperated in the investigation of the misconduct; and whether the attorney previously was admonished or disciplined for misconduct. Misconduct that adversely reflects on the attorney's honesty, trustworthiness, or fitness to practice law shall not be subject to dismissal under this rule.

(h) [(i)] Investigation of Complaints Against Disciplinary Counsel, General Counsel or other Bar agents. Complaints of misconduct concerning disciplinary counsel or general counsel of the Oregon State Bar, or complaints that Bar Counsel or members of an LPRC have engaged in misconduct while acting on the Bar's behalf, shall be referred to the chairperson of the State Professional Responsibility Board within seven days of their receipt by the bar.

(1) If the SPRB chairperson determines that probable cause does not exist to believe misconduct has occurred, the complaint shall be dismissed and the parties shall be notified of the dismissal in writing by the SPRB chairperson.

(2) If the SPRB chairperson determines the complaint should be investigated, the SPRB chairperson may appoint a local professional responsibility committee or an investigator of his or her choice to investigate the matter and to report on the matter directly to the SPRB. The same procedure shall, as far as practicable, apply to the investigation of such complaints as apply to members of the Oregon State Bar generally.

Rule [2.6] 2.7. Investigations Of Alleged Misconduct Other Than By Complaint.

Allegations or instances of alleged misconduct that are brought or come to the attention of the Bar other than through the receipt of a written complaint shall be evaluated using the procedure specified in BR 2.6 [2.5] except as that rule may be inapplicable due to the lack of a written complaint or a complainant with which to communicate.

Rule [2.7] 2.8. Proceedings Not To Stop On Compromise.

Neither unwillingness nor neglect of the complainant to sign or to pursue a complaint, nor settlement, compromise or restitution of any civil claim, shall, in and of itself, justify any failure to undertake or complete the investigation or the formal resolution of a disciplinary or contested reinstatement matter or proceeding.

Rule [2.8] 2.9. Requests For Information And Assistance.

The Bar may request a person complaining against an attorney or applicant to supply and disclose to the investigating authorities of the Bar all documentary and other evidence in his or her possession, and the names and addresses of witnesses relating to his or her complaint, and may otherwise request the complainant to assist such investigating authorities in obtaining evidence in support of the facts surrounding his or her complaint.

Rule 2.10 Diversion.

(a) Diversion by SPRB. As an alternative to issuing an admonition or approving the filing of a formal complaint against an attorney, the SPRB may authorize Disciplinary Counsel to enter into a diversion agreement in which the attorney agrees to participate in a remedial program as set forth in the agreement. Subject to the provisions of this rule, the SPRB has the discretion to determine whether to authorize diversion of a complaint or allegation of misconduct. An attorney does not have a right to have a complaint or allegation of misconduct diverted under this rule.

(b) Diversion eligibility. The SPRB may consider diversion of a complaint or allegation of misconduct if:

(1) The misconduct does not involve the misappropriation of funds or property; fraud, dishonesty, deceit or misrepresentation; or the commission of a misdemeanor involving moral turpitude or a felony under Oregon law;

(2) The misconduct appears to be the result of inadequate law office management, chemical dependency, a physical or mental health condition, negligence, or a lack of training, education or other similar circumstance; and

(3) There appears to be a reasonable likelihood that the successful completion of a remedial program will prevent the recurrence of conduct by the attorney similar to that under consideration for diversion.

(c) Offer of Diversion.

(1) If, after investigation by Disciplinary Counsel or an LPRC, the SPRB determines that an attorney may have committed misconduct and that the matter is appropriate for diversion under this rule, the SPRB, through Disciplinary Counsel, may offer a diversion agreement to the attorney. The attorney shall have 30 days from the date diversion is offered to accept and enter into the diversion agreement. Disciplinary Counsel may grant an extension of time to the attorney for good cause shown.

(2) An attorney may decline to enter into a diversion agreement, in which case the complaint or allegation of misconduct shall be referred back to the SPRB for review pursuant to BR 2.6.

(d) Diversion Agreement.

(1) A diversion agreement shall require the attorney to participate in a specified remedial program to address the apparent cause of the misconduct. Such a remedial program may include, but is not limited to: appointment of a diversion supervisor; assistance or training in law office management; chemical dependency treatment; counseling or peer support meetings; oversight by an experienced practicing attorney; voluntary limitation of areas of practice for the period of the diversion agreement; restitution; or a prescribed course of continuing legal education. The attorney shall bear the costs of a remedial program.

(2) A diversion agreement further shall require the attorney to stipulate to a set of facts concerning the complaint or allegation of misconduct being diverted, and to agree that, in the event the attorney fails to comply with the terms of the diversion agreement, the stipulated facts shall be deemed true in any subsequent disciplinary proceeding.

(3) A diversion agreement may be amended at any time with the consent of the SPRB and the attorney. The SPRB is not obligated to amend a diversion agreement to incorporate additional complaints or allegations of misconduct made against the attorney subsequent to the date of the original agreement.

(4) The term of a diversion agreement shall be no more than 24 months.

(5) In a diversion agreement, the attorney shall agree that a diversion supervisor, treatment provider or any other person to whom the attorney has been referred pursuant to the remedial program specified in the agreement shall report to Disciplinary Counsel any failure by the attorney to comply with the terms of the agreement.

(6) A diversion agreement prepared by Disciplinary Counsel and signed by an attorney is not effective until approved by the SPRB. If approved by the SPRB, Disciplinary Counsel shall notify the complainant and the attorney in writing.

(e) Compliance and Disposition.

(1) If it appears to Disciplinary Counsel that an attorney has failed to comply with the terms of a diversion agreement, Disciplinary Counsel shall inform the SPRB. If the SPRB determines that the allegation of non-compliance, if true, warrants the termination of the diversion agreement, the SPRB shall provide the attorney an opportunity to be heard, through written submission, concerning the alleged non-compliance. Thereafter, the SPRB shall determine whether to terminate the diversion agreement and, if so, take action deemed appropriate under BR 2.6.

(2) If an attorney fulfills the terms of a diversion agreement, Disciplinary Counsel thereafter shall dismiss the complaint or allegation of misconduct with written notice to the complainant and the attorney. The dismissal of a complaint or allegation of misconduct after diversion shall not be considered a prior disciplinary offense in any subsequent proceeding against the attorney.

(f) Public Records Status. The Bar will treat records relating to a complaint or allegation of misconduct diverted under this rule, a diversion agreement, or a remedial program as official records of the Bar, subject to the Oregon Public Records Law, and any applicable exemption thereunder.

DATED THIS 9th day of July 2003.

Wallace P. Carson, Jr.
Chief Justice


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