IN THE SUPREME COURT OF THE STATE OF OREGON


In the Matter of Additions and
Amendments to the DISCIPLINARY
RULES OF THE OREGON CODE OF
PROFESSIONAL RESPONSIBILITY
and the OREGON STATE BAR
RULES OF PROCEDURE
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ORDER NO. 03-051

ORDER ADOPTING
DR 1-105 AND BR 4.9
AND AMENDING THE
OREGON STATE BAR
RULES OF PROCEDURE

At its public meeting on April 1, 2003, the Court considered and adopted certain additions and amendments to the Disciplinary Rules of the Oregon Code of Professional Responsibility and the Oregon State Bar Rules of Procedure.

IT HEREBY IS ORDERED that the addition of Oregon Code of Professional Responsibility Disciplinary Rule 1-105 is approved, as set out below in boldface, effective July 1, 2003:

DR 1-105 Written Advisory Opinions on Professional Conduct; Consideration Given in Disciplinary Proceedings

(A) The Oregon State Bar Board of Governors may issue formal written advisory opinions on questions under this code. The Oregon State Bar Legal Ethics Committee and General Counsel may also issue informal written advisory opinions on questions under this code. The General Counsel's Office of the Oregon State Bar shall maintain records of both OSB formal and informal ethics opinions and shall make copies of each available to the Oregon Supreme Court, Disciplinary Board, State Professional Responsibility Board, and Disciplinary Counsel. The General Counsel's Office may also disseminate the Bar's advisory opinions as it deems appropriate to its role in educating lawyers about this code.

(B) In considering alleged violations of this code, the Disciplinary Board and Oregon Supreme Court may consider any lawyer's good faith effort to comply with an opinion issued under subsection (A) of this rule as

(1) a showing of the lawyer's good faith effort to comply with this code; and

(2) a basis for mitigation of any sanction that may be imposed if the lawyer is found to be in violation of this code.

(C) This rule is not intended to, and does not, preclude the Disciplinary Board or the Oregon Supreme Court from considering any other evidence of either good faith or basis for mitigation in a bar disciplinary proceeding.

IT HEREBY IS ORDERED that the addition of Oregon State Bar Rule of Procedure 4.9 is approved, as set out below in boldface, effective July 1, 2003:

BR 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.

(b) Time of Mediation. Mediation may occur at any time after the filing of a 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 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.

IT HEREBY IS ORDERED that the following amendments to Oregon State Bar Rule of Procedure (BR) 1.1, BR 1.5, BR 1.8, BR 1.10, BR 2.3, BR 2.4, BR 3.4, BR 3.5, BR 3.6, BR 4.1, BR 4.3, BR 4.5, BR 4.6, BR 4.7, BR 4.8, BR 5.3, BR 5.8, BR 5.9, BR 6.2, BR 8.8, BR 8.9, BR 8.10, BR 10.1, BR 10.2, BR 10.3, and BR 10.7 are approved, as set out below (deleted text is in brackets and italics; new text is in boldface), effective July 1, 2003:

BR 1.1 Definitions.

In these rules, unless the context or subject matter requires otherwise:

(a) "Accused" means an attorney charged with misconduct by the Bar in a formal complaint.

(b) "Applicant" means an applicant for admission to practice law in Oregon or an applicant for reinstatement to the practice of law, as the case may be.

(c) "Attorney" means a person who has been admitted to the practice of law in Oregon.

(d) "Bar" means Oregon State Bar created by the Bar Act.

(e) "Bar Act" means ORS Chapter 9.

(f) "Bar Counsel" means counsel appointed by the SPRB or the Board to represent the Bar.

(g) "BBX" means Board of Bar Examiners appointed by the Supreme Court.

(h) "Board" means Board of Governors of the Bar.

(i) "Contested Admission" means a proceeding in which the Bar is objecting to the admission of an applicant to the practice of law upon recommendation of the BBX after a character review proceeding.

(j) "Contested Reinstatement" means a proceeding in which the Bar is objecting to the reinstatement of an attorney or a former attorney to the practice of law.

(k) "Disciplinary Board" means the board appointed by the Supreme Court to hear and decide disciplinary and contested reinstatement proceedings pursuant to these rules.

(l) "Disciplinary Board Clerk" means the person or persons designated in General Counsel's Office of the Bar to receive and maintain records of disciplinary and reinstatement proceedings on behalf of the Disciplinary Board.

([l] m) "Disciplinary Counsel" means disciplinary counsel retained or employed by, and in the office of, the Bar and shall include such assistants as are from time to time employed by the Bar to assist disciplinary counsel.

([m] n) "Disciplinary Proceeding" means a proceeding in which the Bar is charging an attorney with misconduct in a formal complaint.

([n] o) "Examiner" means a member of the BBX.

([o] p) "Executive Director" means the chief administrative employee of the Bar.

([p] q) "Formal Complaint" means the instrument used to charge an attorney with misconduct.

([q] r) "LPRC" means a local professional responsibility committee appointed by the Board.

([r] s) "Misconduct" means any conduct which may or does subject an attorney to discipline under the Bar Act or the rules of professional conduct adopted by the Supreme Court.

([s] t) "State Court Administrator" means the person who holds the office created pursuant to ORS 8.110.

([t] u) "Supreme Court" and "court" mean Supreme Court of Oregon.

([u] v) "SPRB" means State Professional Responsibility Board created by the Board.

([v] w) "Trial Panel" means a three-member panel of the Disciplinary Board.

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BR 1.5 Effective Date.

(a) These rules shall apply to all disciplinary and contested reinstatement proceedings initiated by the service of a formal complaint or statement of objections on an accused or applicant on or after January 1, 1984. [Disciplinary and contested reinstatement proceedings initiated by the service of a formal complaint or statement of objections on an accused or applicant prior to January 1, 1984 shall be completed under the rules in effect prior to that date. For all other purposes, these rules shall become effective January 1, 1984.]

(b) The provisions of BR 1.5(a) shall apply except to the extent that in the opinion of the court their application in a particular matter or proceeding would not be feasible or would work an injustice in which event the former or current rule most consistent with the fair and expeditious resolution of the matter or proceeding under consideration shall be applied.

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BR 1.8 Service [By Mail] Methods.

(a) Except as provided in Rule 4.2 and Rule 8.9, [A]any pleading or document [transmitted by mail to] 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 [transmitted by mail to] 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 [A]any pleading or document [transmitted by mail] served on the Bar Disciplinary Counsel shall also be provided to Bar Counsel, if one has been appointed, [shall be sent] 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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BR 1.10 Filing.

(a) Any pleading or document to be filed with the [Bar] Disciplinary Board Clerk shall be delivered in person or by mail to the Disciplinary Board Clerk[Counsel], 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, Case Records Division, Supreme Court Building, Salem, Oregon 97310. 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.

(b) Filing [may be accomplished] by mail [and] shall be complete on deposit in the mail in the following circumstances: All pleadings or documents, including requests for review, required to be filed within a prescribed time, if mailed on or before the due date by first class mail through the United States Postal Service.

(c) If filing is not done as provided in subsection (b) of this rule, the filing shall not be timely unless the pleading or document is actually received by the intended recipient within the time fixed for filing.

(d) A copy of any pleading or document [delivered for filing] filed under these Rules must also be served by the party or attorney delivering it on other parties to the case. All service copies must include a certificate showing the date of [delivery for] filing. "Parties" for the purposes of this rule shall be the accused or applicant, or his or her attorney if the accused or applicant is represented, Disciplinary Counsel, and Bar Counsel.

(e) Proof of service shall appear on or be affixed to any pleading or document filed. Such proof shall be either an acknowledgement of service by the person served or be in the form of a statement of the date of personal delivery or deposit in the mail and the names and addresses of the persons served, certified by the person who has made service.

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Title 2 -- Structure And Duties

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

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(b) SPRB.

(1) Appointment. The Board shall create for the state at large a state professional responsibility board and appoint its members. The SPRB shall be composed of seven resident attorneys and two members of the public who are not attorneys. Two attorney members shall be from Board Region 5 and one attorney member shall be from each of the remaining Board regions. The public members shall be at-large appointees. Members of the SPRB shall be appointed for terms of not more than four-years [terms] and shall [not be reappointed] serve not more than four years. Each year the Board shall appoint one member of the SPRB as chairperson. The chairperson shall be an attorney. In the event the chairperson is unable to carry out any responsibility given to him or her by these rules, the chairperson may designate another member of the SPRB to do so.

(2) Duties of SPRB. The SPRB shall supervise the investigation of complaints, allegations, or instances of alleged misconduct on the part of attorneys and act on such matters as it may deem appropriate. A complaint by a client or other aggrieved person shall not be a prerequisite to the investigation of alleged misconduct by attorneys or the institution of disciplinary proceedings against any attorney.

(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, institute disciplinary proceedings against any attorney, or take other action within the discretion granted to the SPRB by these rules.

(B) The SPRB shall have the authority to adopt rules dealing with the handling of its affairs, subject to approval by the Board.

(C) The SPRB shall have the authority to take evidence, administer oaths or affirmations, and issue subpoenas to compel the attendance of witnesses, including the attorney being investigated, and the production of books, papers and documents pertaining to the matter under investigation.

(D) A witness in an investigation conducted by the SPRB who testifies falsely, fails to appear when subpoenaed, or fails to produce any books, papers or documents pursuant to subpoena, shall be subject to the same orders and penalties to which a witness before a circuit court is subject. The SPRB may enforce any subpoena issued pursuant to BR 2.3(b)(3)(A) by application to any circuit court. The circuit court shall determine what sanction to impose, if any, for noncompliance.

(E) A member of the SPRB or Disciplinary Counsel may administer oaths or affirmations and issue any subpoena provided for in BR 2.3(b)(3)(C).

(c) Resignation and Replacement. The Board may remove, at its discretion, or accept the resignation of, any officer or member of the SPRB or an LPRC and appoint a successor who shall serve the unexpired term of the member who is replaced.

BR 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.

(b) Term.

(1) Disciplinary Board members shall serve terms of 3 years and may be reappointed. [Disciplinary Board members shall not serve more than 2 terms.] 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 for the time required to complete the cases assigned to them during their term of appointment, 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.

(c) Resignation and Replacement. The court may remove, at its discretion, or accept the resignation of, any member of the Disciplinary Board and appoint a successor who shall serve the unexpired term of the member who is replaced.

(d) Disqualifications.

(1) The disqualifications contained in the Code of Judicial Conduct shall apply to members of the Disciplinary Board.

(2) The following individuals shall not serve on the Disciplinary Board:

(A) A member of the Board, the SPRB, or an LPRC shall not serve on the Disciplinary Board during the member's term of office. This disqualification shall also preclude an attorney or public member from serving on the Disciplinary Board while any member of his or her firm is serving on the Board, the SPRB or an LPRC.

(B) No member of the Disciplinary Board shall sit on a trial panel with regard to subject matter considered by the Board, the SPRB or an LPRC while a member thereof or with regard to subject matter considered by any member of his or her firm while a member of the Board, the SPRB or an LPRC.

(e) Duties of State Chairperson.

(1) The state chairperson shall coordinate and supervise the activities of the Disciplinary Board, including the monitoring of timely preparation and filing of trial panel opinions.

(2) The state chairperson shall not be required to, but may, serve on trial panels during his or her term of office.

(3) The state chairperson shall resolve all challenges to the qualifications of regional chairpersons under BR 2.4(g) and all challenges to the qualifications of trial panels appointed in contested reinstatement proceedings.

(4) Upon receipt of written notice from Disciplinary Counsel of service of a statement of objections, the state chairperson shall appoint a trial panel and trial panel chairperson from an appropriate region. The state chairperson shall give written notice to Disciplinary Counsel, Bar Counsel and the applicant of such appointments and a copy of the notice shall be filed with the Disciplinary Board Clerk.

(5) The state chairperson shall appoint a member of the Disciplinary Board to conduct pre-hearing conferences as provided in BR 4.6.

(6) The state chairperson may appoint Disciplinary Board members from any region to serve on trial panels or to conduct pre-hearing conferences as may be necessary to resolve the matters submitted to the Disciplinary Board for consideration.

(7) In matters involving final decisions of the Disciplinary Board under BR 10.1, the state chairperson shall review statements of costs and disbursements and objections thereto and shall fix the amount of actual and necessary costs and disbursements to be recovered by the prevailing party.

(f) Duties of Regional Chairperson.

(1) Upon receipt of written notice from Disciplinary Counsel of service of a formal complaint, the regional chairperson shall appoint a trial panel from the members of the regional panel and a chairperson thereof. The regional chairperson shall give written notice to Disciplinary Counsel, Bar Counsel and the accused of such appointments and a copy of the notice shall be filed with the Disciplinary Board Clerk.

(2) Except as provided in BR 2.4(e)(3), the regional chairperson shall rule on all challenges to the qualifications of members of the trial panels in his or her region under BR 2.4(g).

(3) Upon the stipulation of the Bar and an accused, the regional chairperson shall appoint one attorney member from the regional panel to serve as the sole adjudicator in a disciplinary proceeding. In such case, the member appointed shall have the same duties and authority under these rules as a three member trial panel.

(4) The regional chairperson may serve on trial panels during his or her term of office.

(5) The regional chairperson shall rule on all questions of procedure and discovery that arise prior to the appointment of a trial panel and trial panel chairperson.

(g) Challenges. The Bar and an accused or applicant shall be entitled to one peremptory challenge and an unlimited number of challenges for cause as may arise under the Code of Judicial Conduct or these rules. Any such challenges shall be filed in writing within seven days of written notice of an appointment of a trial panel with the Disciplinary Board Clerk, with copies to the regional chairperson for disciplinary proceedings [and] or to the state chairperson for contested admission and reinstatement proceedings or for [cases involving] challenges to a regional chairperson. Challenges for cause shall state the reason for the challenge. The written ruling on a challenge shall be filed with the Disciplinary Board Clerk and [The] the regional chairperson or the state chairperson, as the case may be, shall [notify] serve copies of the ruling on all parties [Disciplinary Counsel, Bar Counsel and the accused or applicant in writing of all rulings on challenges]. These provisions shall apply to all substitute appointments, except that neither the Bar nor an accused or applicant shall have more than 1 peremptory challenge. The Bar and an accused or applicant may waive a disqualification of a member in the same manner as in the case of a judge under the Code of Judicial Conduct.

(h) Duties of Trial Panel Chairperson. The Disciplinary [Counsel] Board Clerk shall mail to the trial panel finally selected a copy of the formal complaint or statement of objections and, if one has been filed, the answer of the accused or applicant. Upon receipt of the pleadings from the Disciplinary [Counsel] Board Clerk, the trial panel chairperson shall promptly establish the date and place of hearing pursuant to BR 5.4 and notify in writing the Disciplinary Board Clerk, [Disciplinary Counsel, Bar Counsel, and the accused or applicant] and the parties of the date and place of hearing. The trial panel chairperson shall rule on all pre-hearing matters, except for challenges under BR 2.4(e)(3). The trial panel chairperson shall convene the hearing, oversee the orderly conduct of the same, and timely file with the Disciplinary Board Clerk the written opinion of the trial panel.

(i) Duties of Trial Panel.

(1) Trial. It shall be the duty of a trial panel to which a disciplinary or contested reinstatement proceeding has been referred, promptly to try the issues. The trial panel shall pass on all questions of procedure and admission of evidence.

(2) (a) Opinions. The trial panel shall render a written opinion signed by the concurring members of the trial panel. A dissenting member shall note the dissent and may file a dissenting opinion attached to the majority opinion of the trial panel. The majority opinion shall include specific findings of fact, conclusions and a disposition. The trial panel chairperson shall file the original opinion [shall be filed] with the Disciplinary [Counsel] Board Clerk, [with] and serve copies on the parties [a copy sent to Bar Counsel and the accused or applicant, and a copy filed with] and the State Court Administrator. It shall be filed within 28 days after the conclusion of the hearing, the settlement of the transcript if required under BR 5.3(e), or the filing of briefs if requested by the trial panel chairperson pursuant to BR 4.8, whichever is later.

(b) Extensions of Time to File Opinions. If additional time is required by the trial panel to render its opinion, [it] the trial panel chairperson may file a request for an extension of time with the Disciplinary Board Clerk and serve a copy on the state chairperson prior to the expiration of the applicable 28 day period. Disciplinary Counsel, Bar Counsel, and the accused or applicant shall be given written notice of such request. The state chairperson shall file a written decision on the extension request with the Disciplinary Board Clerk and shall serve copies on all parties [and shall be notified by the state chairperson in writing of the extension decision].

(3) Record. The trial panel shall keep a record of all proceedings before it, including a transcript of the evidence and exhibits offered and received, and shall promptly file such record with the Disciplinary [Counsel] Board Clerk.

(4) Notice. The Disciplinary [Counsel] Board Clerk shall [mail] promptly [to] notify the parties [Bar Counsel and the accused or applicant a notice acknowledging] of receipt of the opinion from the trial panel.

(j) Publications.

(1) Disciplinary Counsel shall cause to be prepared, on a periodic basis, a reporter service containing the full text of all Disciplinary Board decisions not reviewed by the Supreme Court. The reporter service shall be distributed to all state and county law libraries and members of the Disciplinary Board.

(2) Disciplinary Counsel shall have printed in the Bar Bulletin, on a periodic basis, summaries of Supreme Court contested admission, contested reinstatement and disciplinary decisions and summaries of all Disciplinary Board decisions not reviewed by the Supreme Court.

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Title 3 -- Special Proceedings

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BR 3.4 Conviction Of Attorneys.

(a) Referral of Convictions to Court. Disciplinary Counsel, after reporting on the matter to the SPRB, shall promptly notify the court after receiving notice that an attorney has been convicted in any jurisdiction of an offense that is a misdemeanor which may involve moral turpitude or is a felony under the laws of this state, or is punishable by death or imprisonment under the laws of the United States. Disciplinary Counsel shall file a copy of the documents which show the conviction and a statement of the SPRB's recommendation regarding the imposition of a suspension with the court, with written notice to the attorney. A "conviction" for the purposes of this rule shall be considered to have occurred upon entry of a plea of guilty or no contest or upon entry of a finding or verdict of guilty.

(b) Response of Attorney. Any written material the attorney wishes the court to consider in the matter must be filed with the court within 14 days of the filing of the Bar's statement, with proof of service on Disciplinary Counsel.

(c) Response of Bar. The Bar shall have 7 days from the filing of written material by the attorney with the court to file with the court a response thereto. The Bar shall submit to the court proof of service of its response on the attorney.

(d) Suspension. Upon review of the documents showing the conviction and the material filed by the attorney and the Bar, the court may suspend the attorney from the practice of law until further order of the court. An attorney suspended from practice under this rule shall comply with the requirements of BR 6.3(a) and (b).

(e) Hearing. Whether or not the court suspends the attorney, the court may refer the matter to the Disciplinary Board, [with written notice to Disciplinary Counsel and the attorney,] for the scheduling of a hearing before a trial panel. The hearing shall be to determine what discipline, if any, should be imposed for the attorney's conviction. The referral shall be made in writing to the Disciplinary Board Clerk, with copies to Disciplinary Counsel and the attorney. Upon receipt of notice of a referral of a conviction matter to the Disciplinary Board, Disciplinary Counsel may appoint Bar Counsel to file a formal complaint regarding the conviction. The same rules as apply in a disciplinary proceeding shall apply in a conviction proceeding.

(f) Independent Charges; Consolidated Proceedings. The SPRB may cause disciplinary charges to be filed against the attorney independent of the fact of the attorney's conviction. In such case those charges shall be consolidated for hearing with the conviction matter, if the conviction matter has been referred to the Disciplinary Board by the court.

(g) Review by Court. The trial panel's decision shall be subject to review by the court as is authorized in Title 10 of these rules.

(h) Reinstatement Rules Apply. The rules on reinstatement shall apply to attorneys suspended or disbarred pursuant to the procedure set forth in BR 3.4(e), (f) and (g).

(i) Relief From Suspension. If an attorney's conviction is reversed on appeal, and such reversal has become a final order not subject to further appeal or review, or the attorney has been granted a new trial which order has become final, a suspension or discipline previously ordered shall be vacated upon the court's receipt of the judgment of reversal or order granting the attorney a new trial. Reversal of the attorney's conviction on appeal or the granting of a new trial does not require the termination of any disciplinary proceeding based upon the same facts which gave rise to the conviction.

BR 3.5 Reciprocal Discipline.

(a) Notice to Court. Disciplinary Counsel, after reporting on the matter to the SPRB, shall promptly notify the court after receiving notice that an attorney has been disciplined for misconduct in another jurisdiction. Disciplinary Counsel shall file a copy of the judgment, order or determination of discipline with the court, with written notice to the attorney. A plea of no contest, a stipulation for discipline or a resignation while formal charges are pending shall be considered a judgment or order of discipline for the purposes of this rule. The judgment or order or determination of discipline shall be accompanied by a recommendation of the SPRB as to the imposition of discipline in Oregon based on the discipline in the jurisdiction whose action is reported to the court, and such other information as the Bar deems appropriate to file with the court.

(b) Judgment Sufficient Evidence of Misconduct. A copy of the judgment, order or determination of discipline shall be sufficient evidence for the purposes of this rule that the attorney committed the misconduct described therein.

(c) Answer of Attorney. The attorney shall have 21 days from the filing of the judgment, order, or determination of discipline with the court to file with the court an answer discussing the following issues:

(1) Was the procedure in the jurisdiction which disciplined the attorney lacking in notice or opportunity to be heard?

(2) Should the attorney be disciplined by the court? The attorney shall mail a copy of his or her answer to Disciplinary Counsel and file proof of mailing with the court.

(d) Reply of Bar. The Bar shall have 14 days from the expiration of the time specified in BR 3.5(c) in which to file a reply to the attorney's answer with the court. The Bar shall mail a copy to the attorney and file proof of mailing with the court.

(e) Review by Court; Referral for Hearing. Upon review of the judgment, order or determination of discipline and the response and answer filed by the attorney and the Bar, and after oral argument if ordered by the court, the court shall determine whether the attorney should be disciplined in Oregon for misconduct in another jurisdiction and if so, in what manner. The court, in its discretion, may refer the matter to the Disciplinary Board[, with written notice to Disciplinary Counsel and the attorney,] for the purpose of taking testimony on the issues set forth in BR 3.5(c)(1) and (2). The referral shall be made in writing to the Disciplinary Board Clerk with copies to Disciplinary Counsel and the attorney. Upon receipt of a notice of referral to the Disciplinary Board, Disciplinary Counsel may appoint Bar Counsel to file a formal complaint regarding the issues before the Disciplinary Board. The same rules as apply in a disciplinary proceeding shall apply in a reciprocal discipline proceeding.

(f) Burden of Proof. The attorney shall have the burden of proving in any hearing held pursuant to BR 3.5(e) that due process of law was not afforded the attorney in the other jurisdiction.

(g) Hearing; Review by Court. A trial panel appointed by the state chairperson shall make a decision concerning the issues submitted to it. The trial panel's decision shall be subject to review by the court as is authorized in Title 10 of these rules.

(h) Suspension. The court may suspend an attorney from the practice of law in this state at the time it approves a referral of the matter to the Disciplinary Board for hearing. The suspension shall remain in effect until otherwise ordered by the court. An attorney suspended under this rule shall comply with the requirements of BR 6.3(a) and (b).

(i) Reinstatement Rules Apply. The rules on reinstatement shall apply to attorneys suspended or disbarred pursuant to the procedure set forth in BR 3.5(e), (f) and (g).

(j) Independent Charges. Nothing in this rule shall preclude the filing of disciplinary charges by the Bar against an attorney for misconduct in any jurisdiction.

BR 3.6 Discipline By Consent.

(a) Application. Any allegation of misconduct may be disposed of by a no contest plea, or by a stipulation for discipline, entered into at any time after the SPRB finds probable cause that misconduct has occurred.

(b) No Contest Plea. A plea of no contest to all causes or any cause of a formal complaint, or to allegations of misconduct if a formal complaint has not been filed, shall be verified by the accused and shall include:

(i) A statement that the plea has been freely and voluntarily made by the accused;

(ii) A statement that the accused does not desire to defend against the formal complaint or any designated cause thereof, or against an allegation of misconduct not yet pled;

(iii) A statement that the accused agrees to accept a designated form of discipline in exchange for the no contest plea;

(iv) A statement of the accused's prior record of reprimand, suspension or disbarment, or absence of such record.

(c) Stipulation for Discipline. A stipulation for discipline shall be verified by the accused and shall include:

(i) A statement that the stipulation has been freely and voluntarily made by the accused;

(ii) A statement that explains the particular facts and violations to which the Bar and the accused are stipulating;

(iii) A statement that the accused agrees to accept a designated form of discipline in exchange for the stipulation;

(iv) A statement of the accused's prior record of reprimand, suspension or disbarment, or absence of such record.

(d) Approval of SPRB. Pleas of no contest and stipulations shall be approved as to form by Disciplinary Counsel and approved in substance by the chairperson of the SPRB or a member of the SPRB designated by the chairperson. If [T]the plea or stipulation[, if] is acceptable to the SPRB and the accused, Disciplinary Counsel shall [be] file it with the [by] Disciplinary Board Clerk and provide copies [Counsel with] to the state chairperson and the appropriate regional chairperson of the Disciplinary Board if the full term of the discipline agreed upon does not exceed a 6-month suspension; otherwise it shall be filed with the State Court Administrator for review by the court.

(e) Review by Disciplinary Board or Court. The Disciplinary Board or the court, as the case may be, shall review the plea or stipulation. If the matter is submitted to the Disciplinary Board, it shall be reviewed by the state chairperson and the regional chairperson in the region the accused maintains his or her principal place of business. If the accused does not maintain a place of business in Oregon, the plea or stipulation shall be reviewed by the regional chair for Region 5. The state chairperson and regional chairperson shall have the authority to act on the matter for the Disciplinary Board. If the Disciplinary Board or the court approves the plea or stipulation a decision shall be issued so stating. The written decision of the Disciplinary Board shall be filed by the state chairperson with the Disciplinary Board Clerk and copies shall be provided to Disciplinary Counsel and the accused. If the plea or stipulation is rejected by the Disciplinary Board or the court it may not be used as evidence of misconduct against the accused in the pending or in any subsequent disciplinary proceeding.

(f) Costs. In matters submitted under this rule that are resolved by a decision of the Disciplinary Board, the [The] Bar may file a cost bill with the Disciplinary Board Clerk [or the court, as the case may be,] within 21 days of the filing of the decision of the Disciplinary Board [or the court in matters submitted under this rule], accompanied by proof of service on the state chairperson and the accused. The accused, if he or she desires to contest the Bar's statement of costs, must file verified objections with the Disciplinary Board Clerk within 7 days from the date of the filing of the Bar's cost bill, accompanied by [with] proof of service on the state chairperson and Disciplinary Counsel [with the state chairperson of the Disciplinary Board or the court within 7 days from the date of filing of the Bar's cost bill]. If the matter is resolved by a decision of the court, the Bar's cost bill and the accused objections must be filed with the court within the same time periods, accompanied by proof of service on the other party. The state chairperson of the Disciplinary Board or the court, as the case may be, may fix the amount of the Bar's actual and necessary costs and disbursements incurred in the proceeding to be paid by the accused.

(g) Supplementing Record. If the Disciplinary Board or the court concludes that facts are not set forth in sufficient detail to enable it to form an opinion as to the propriety of the discipline agreed upon, the Disciplinary Board or court may request that additional stipulated facts be submitted or it may disapprove the plea or stipulation.

(h) Confidentiality. A plea or stipulation prepared for the Disciplinary Board or the court's consideration shall not be subject to public disclosure prior to Disciplinary Board or court approval of the plea or stipulation or if rejected by the Disciplinary Board or court.




Title 4 -- Prehearing Procedure

BR 4.1 Formal Complaint.

(a) Designation of Counsel and Region. If it shall appear to the SPRB that probable cause exists to believe an attorney has engaged in misconduct and that formal proceedings are warranted, it shall refer the matter to Disciplinary Counsel with instructions to file specified charges against the attorney. Disciplinary Counsel, being so advised, may appoint Bar Counsel and, upon the service of a formal complaint upon an accused, request that the Disciplinary Board appoint a trial panel in the appropriate region selected pursuant to BR 5.3(a).

(b) Filing. Disciplinary Counsel or Bar Counsel shall prepare and file with the Disciplinary Board Clerk a formal complaint against the attorney on behalf of the Bar. Proceedings thereon shall then be had as herein provided. The formal complaint shall be in substantially the form set forth in BR 12.1.

(c) Substance of Formal Complaint. A formal complaint shall be signed by Disciplinary Counsel, or his or her designee, and shall set forth succinctly the acts or omissions of the accused, including the specific statutes or disciplinary rules violated, so as to enable the accused to know the nature of the charge or charges against the accused. When more than one act or transaction is relied upon, the allegations shall be separately stated and numbered. The formal complaint need not be verified.

(d) Consolidation of Charges and Proceedings. The Bar, at the direction of the SPRB, may consolidate in a formal complaint two or more causes of complaint against the same attorney or attorneys, but shall file a separate formal complaint against each accused. The findings and conclusions thereon may be either joint or separate, as the trial panel, in its discretion, may determine. The Bar, at the discretion of the SPRB, may also consolidate formal complaints against two or more attorneys for hearing before one trial panel.

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BR 4.3 Answer.

(a) Time to Answer. The accused shall answer the formal complaint within 14 days of service of the formal complaint.

(b) Extensions. The accused may, in writing, request an extension of time to file his or her answer from Disciplinary Counsel. The request for extension must be received by Disciplinary Counsel within the time the accused is required to file an answer. Disciplinary Counsel shall respond to the request in writing and shall file a copy of the response with the Disciplinary Board Clerk.

(c) Trial Panel Authority. Upon application of either the Bar or the accused, the trial panel chairperson to which the matter is assigned, or the regional chairperson if a trial panel chairperson has not been appointed, may extend the time for filing any pleading or for filing any document required or permitted to be submitted to the trial panel, except as otherwise provided in these rules.

(d) Form of Answer. The accused's answer shall be responsive to the formal complaint filed. General denials shall not be allowed. The answer shall be substantially in the form set forth in BR 12.3 and shall be verified by the accused. The original shall be filed with the Disciplinary Board Clerk with proof of service on Disciplinary Counsel and a [copy mailed by the accused to] Bar Counsel, if one has been appointed.

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BR 4.5 Discovery.

(a) General. Discovery in disciplinary proceedings is intended to promote identification of issues and a prompt and fair hearing on the charges. Discovery shall be conducted expeditiously by the Bar and the accused, and shall be completed within 14 days prior to the date of hearing unless extended for good cause by the trial panel chairperson.

(b) Permitted Discovery.

(1) Requests for admission, requests for production of documents, and depositions may be utilized in disciplinary proceedings.

(2) The manner of taking depositions shall conform as nearly as practicable to the procedure set forth in the Oregon Rules of Civil Procedure. Subpoenas may be issued when necessary by the trial panel chairperson, Bar Counsel, Disciplinary Counsel, the accused or his or her attorney of record. Depositions may be taken any time after service of the formal complaint.

(3) Transcripts of depositions in disciplinary proceedings shall comply with the Rules of Appellate Procedure of the Supreme Court as to form. A person who is deposed may request at the time of deposition to examine the person's transcribed testimony. In such case, the procedure set forth in the Oregon Rules of Civil Procedure shall be followed as far as practicable.

(4) The manner of making requests for the production of documents shall conform as nearly as practicable to the procedure set forth in the Oregon Rules of Civil Procedure. Requests for production may be served any time after service of the formal complaint with responses due within 21 days.

(5) The manner of making requests for admission shall conform as nearly as practicable to the procedure set forth in the Oregon Rules of Civil Procedure. Requests for admission may be served any time after service of the formal complaint with responses due within 21 days.

(c) Discovery Procedure. All discovery questions shall be resolved by the trial panel chairperson on motion, or by the regional chairperson if a trial panel chairperson has not been appointed. Discovery motions, including motions for limitation of discovery, shall be in writing. All such motions shall be filed with the Disciplinary Board Clerk with proof of service on the trial panel chairperson and on the other parties [and a copy mailed to Bar Counsel or the accused, and Disciplinary Counsel.] The Bar or the accused shall have 7 days from filing of a motion [with a trial panel chairperson] in which to file a response, unless the time is shortened by the trial panel chairperson for good cause. The response shall be filed with the Disciplinary Board Clerk with proof of service on the trial panel chairperson and the other parties. Upon expiration of the time for response, the trial panel chairperson shall promptly rule on the motion, with or without argument at the discretion of the trial panel chairperson. Argument on any motion may be heard by conference telephone call. Rulings on discovery motions shall be filed [in writing] with the Disciplinary Board Clerk with copies mailed to [Bar Counsel, the accused, and Disciplinary Counsel] the parties.

(d) Limitations on Discovery. In the exercise of his or her discretion, the trial panel chairperson shall impose such terms or limitations on the exercise of discovery as may appear necessary to prevent undue delay or expense in bringing the matter to hearing and to promote the interests of justice.

(e) Discovery Sanctions. For failure to provide discovery as required under BR 4.5, the trial panel chairperson may make such rulings as are just, including, but not limited to, the following:

(1) A ruling that the matters regarding which the ruling was made or any other designated fact shall be taken to be established for the purposes of the proceeding in accordance with the claim of the litigant obtaining the ruling; or

(2) A ruling refusing to allow the disobedient litigant to support or oppose designated claims or defenses, or prohibiting the disobedient litigant from introducing designated matters in evidence.

In addition, any witness who testifies falsely, fails to appear when subpoenaed, or fails to produce any documents pursuant to subpoena, shall be subject to the same orders and penalties to which a witness before a circuit court is subject. Subpoenas issued pursuant to BR 4.5 may be enforced by application of the Bar or accused to any circuit court. The circuit court shall determine what sanction to impose, if any, for noncompliance.

(f) Rulings Interlocutory. Discovery rulings are interlocutory.

BR 4.6 Pre-hearing Conferences.

[At the request of either the Bar or an accused made in writing to the State Chairperson of the Disciplinary Board w] Within seven days of written notice that the pleadings were mailed to the trial panel under BR 2.4(h), either the Bar or the accused may file with the Disciplinary Board Clerk a request for a pre-hearing conference. A copy of the request shall be served on the state chairperson, who shall appoint a member of the Disciplinary Board to conduct a pre-hearing conference. A conference shall be held no later than 21 days before the scheduled hearing date in a disciplinary proceeding. The Bar and the accused, and counsel for the accused, must attend. The purpose of the conference shall be to narrow factual and legal issues in dispute for trial and to facilitate discussion regarding discipline by consent under BR 3.6, if appropriate. Except for those facts admitted and denied in the pre-hearing order, under BR 4.7, no oral or written statements or admissions made at or in connection with the pre-hearing conference shall be admitted as evidence in this or any subsequent bar disciplinary proceeding. No member of the trial panel appointed in the proceeding shall conduct or participate in the pre-hearing conference.

BR 4.7 Pre-hearing Orders.

At the conclusion of a pre-hearing conference, the presiding member shall enter an order setting forth agreed and disputed facts and elements of the violations alleged. The original order shall be filed with the Disciplinary Board Clerk with copies served on the parties. Agreed facts shall be deemed admitted and need not be proven at the hearing before the trial panel.

BR 4.8 Briefs.

Briefs, if any, shall be filed with the Disciplinary Board Clerk with copies served on the trial panel no later than 7 days prior to the hearing, provided that the trial panel chairperson may, in his or her discretion, where new or additional issues have arisen, grant 7 days additional time for the filing of briefs on those issues.




Title 5 -- Disciplinary Hearing Procedure

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BR 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 did not occur 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.

(b) Subpoenas. The Executive Director, the state chairperson or regional chairpersons of the Disciplinary Board, trial panel chairpersons, Bar Counsel, Disciplinary Counsel and the attorney of record for the accused or the accused, if appearing without an attorney, shall have the authority to issue subpoenas. Subpoenas shall be issued and served in accordance with the Oregon Rules of Civil Procedure in the same manner as in a case pending in a circuit court. Any witness who testifies falsely, fails to appear when subpoenaed, or fails to produce any documents pursuant to subpoena, shall be subject to the same orders and penalties to which a witness before a circuit court is subject. Subpoenas issued pursuant to BR 4.5 may be enforced by application of the Bar or an accused to any circuit court. The circuit court shall determine what sanction to impose, if any, for noncompliance.

(c) Board Members as Witnesses. Current members of the Board of Governors shall not testify as witnesses in any Bar admission, discipline or reinstatement proceeding except pursuant to subpoena.

(d) Testimony. Witnesses shall testify under oath or affirmation administered by any member of the Disciplinary Board or by any person authorized by law to administer an oath.

(e) Transcript of Proceedings; Correction of Errors; Settlement Order. Every disciplinary hearing shall be transcribed. The transcription shall be certified by the person preparing it. The reporter shall give written notice to Disciplinary Counsel, Bar Counsel, and the accused of the filing of the transcripts with the Disciplinary Board Clerk, who shall provide copies to the trial panel chairperson. Within 14 days after the transcript is filed, the Bar or the accused may move the trial panel chairperson for an order to correct any errors appearing in the transcript. A copy of such motion shall be filed with the Disciplinary Board Clerk and served on the trial panel chairperson and the other parties [mailed to the Bar or the accused, as the case may be]. Within 7 days the Bar or the accused, as the case may be, may file a response to the motion with the Disciplinary Board Clerk and serve copies on the trial panel chairperson and the other parties. The trial panel chairperson shall thereafter direct the making of such corrections as may be appropriate. Upon the denial of a motion to correct the transcript or upon the making of such corrections as may be directed by the trial panel chairperson, the trial panel chairperson shall file with the Disciplinary Board Clerk an order settling the transcript [shall be entered in the record by the trial panel chairperson] and shall serve copies on the parties [with copies thereof mailed to Disciplinary Counsel, Bar Counsel and the accused].

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BR 5.8 Default.

(a) Failure to Answer or Appear. If an accused lawyer fails to resign or file an answer to a formal complaint within the time allowed by these rules, or if an accused lawyer fails to appear at a hearing set pursuant to BR 2.4(h), the trial panel, or the regional chairperson if a trial panel has not been appointed, may file with the Disciplinary Board Clerk [enter] an order [in the record] finding the accused in default under this rule. Copies of the order shall be served on the parties. The trial panel shall thereafter deem the allegations in the formal complaint to be true. The trial panel shall thereafter proceed to render its written opinion based on the formal complaint, or at the discretion of the trial panel, after considering evidence or legal authority limited to the issue of sanction. Following entry of an order of default, the accused shall not be entitled to further notice in the disciplinary proceeding under consideration, except as may be required by these rules or by statute. The trial panel shall not, absent good cause, continue or delay proceedings due to an accused's failure to answer or appear.

(b) Setting Aside Default. At any time prior to a trial panel rendering its written opinion, the trial panel may set aside an order of default upon a showing by the accused that the accused's failure to resign, answer or appear timely was the result of mistake, inadvertence, surprise or excusable neglect. After a trial panel opinion is rendered, a motion to set aside an order of default must be filed with the Supreme Court.

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 9.568 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] file with the Disciplinary Board Clerk, with proof of service on Disciplinary Counsel, 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).




Title 6 -- Sanctions And Other Remedies

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BR 6.2 Probation.

(a) Authority in Disciplinary Proceedings. Upon determining that an accused should be suspended, the trial panel may decide that the execution of the suspension shall be stayed, in whole or in part, and that the accused shall be placed on probation for a period no longer than three years. The imposition of a probationary term shall not affect the criteria established by statute and these rules for the review of decisions of trial panels by the Supreme Court. Probation, if ordered, may be under such conditions as the trial panel or the Supreme Court considers appropriate. Such conditions may include, but are not limited to, requiring alcohol or drug treatment; requiring medical care; requiring psychological or psychiatric care; requiring professional office practice or management counseling; and requiring periodic audits or reports. In any case where an attorney is placed on probation pursuant to this rule, the state chairperson of the Disciplinary Board or the Supreme Court may appoint a suitable person or persons to supervise the probation. Cooperation with a person or persons so appointed shall be a condition of the probation.

(b) Authority in Contested Reinstatement Proceedings. Upon determining that an applicant should be readmitted to membership in the Oregon State Bar, the trial panel may decide to place the applicant on probation for a period no longer than three years. The probationary terms may include, but are not limited to, those provided in BR 6.2(a). The Supreme Court may adopt, in whole or in part, the decision of the trial panel regarding probation and enter an appropriate order upon a review of the proceeding. The court may appoint a suitable person or persons to supervise the probation. Cooperation with a person or persons so appointed shall be a condition of the probation. An attorney placed on probation pursuant to this rule may have his or her probation revoked for a violation of any probationary term by petition of Disciplinary Counsel in accordance with the procedures set forth in BR 6.2(d). An attorney whose probation is revoked shall be suspended from the practice of law until further order of the court.

(c) Disciplinary Board. In all cases where the trial panel determines that the accused should be suspended and the determination is not reviewed by the Supreme Court, thereby resulting in such determination becoming final, the decision that the accused be placed on probation under the conditions specified in the trial panel's opinion shall be deemed adopted and made a part of the determination.

(d) Revocation. Disciplinary Counsel may petition the state chairperson of the Disciplinary Board or the Supreme Court, as the case may be, to revoke the probation of any attorney for violation of any probationary term imposed by a trial panel or the Supreme Court. The state chairperson or court may order the attorney to appear and show cause, if he or she has any, why the attorney's probation should not be revoked and the original sanctions imposed. The state chairperson or the court, as the case may be, may appoint a trial panel of the Disciplinary Board to conduct the show cause hearing and report back to the state chairperson or the court. The state chairperson or the court, as the case may be, shall thereafter rule on the petition. If the revocation matter is within the jurisdiction of the Disciplinary Board, the petition, the order to appear and show cause, the order appointing a trial panel and the decision of the trial panel shall be filed with the Disciplinary Board Clerk and copies shall be served on the other parties. A petition for revocation of an attorney's probation shall not preclude the Bar from filing independent disciplinary charges based on the same conduct as alleged in the petition.

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Title 8 -- Reinstatement

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BR 8.8 Petition To Review Adverse Recommendation.

Not later than 28 days after the Bar files an adverse recommendation regarding the applicant with the court, an applicant who desires to contest the Board's recommendation shall file with Disciplinary Counsel and the State Court Administrator a petition stating in substance that the applicant desires to have the case reviewed by the court. If the court considers it appropriate, it may refer the petition to the Disciplinary Board to inquire into the applicant's moral character and general fitness to practice law. Written notice shall be given by the State Court Administrator to the Disciplinary Board Clerk, Disciplinary Counsel and the applicant of such referral. The applicant's resignation, disbarment, suspension or inactive membership status shall remain in effect until final disposition of the petition by the court.

BR 8.9 Procedure On Referral By Court.

On receipt of notice of a referral to the Disciplinary Board under BR 8.8, Disciplinary Counsel may appoint Bar Counsel to represent the Bar. Disciplinary Counsel or Bar Counsel shall prepare and file with the Disciplinary Board Clerk, with proof of service [and serve] on the applicant, a statement of objections. The statement of objections shall be substantially in the form set forth in BR 12.5.

BR 8.10 Answer To Statement Of Objections.

The applicant shall answer the statement of objections within 14 days after service of the statement and notice to answer upon the applicant. The answer shall be responsive to the objections filed. General denials are not allowed. The answer shall be substantially in the form set forth in BR 12.3. The original shall be filed with the Disciplinary Board Clerk with proof of service on Disciplinary Counsel and [a copy mailed to] Bar Counsel. After the answer is filed or upon the expiration of the time allowed in the event the applicant fails to answer, the matter shall proceed to hearing.

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Title 10 -- Review By Supreme Court

BR 10.1 Disciplinary Proceedings.

Upon the conclusion of a disciplinary hearing, the trial panel, pursuant to BR 1.8, shall file its written opinion with the Disciplinary Board Clerk and serve copies on Disciplinary Counsel, [and mail a copy to] Bar Counsel and the accused. The trial panel shall file a copy of its opinion with the State Court Administrator. If the decision of the trial panel finds the accused not guilty of all alleged misconduct or determines that the accused shall be disciplined by reprimand or suspension from the practice of law not to exceed 6 months, the Bar, through the SPRB, or the accused may seek review of the matter by the Supreme Court; otherwise, the decision of the trial panel shall be final on the 29th day following [the mailing] notice of receipt of the trial panel opinion by the Disciplinary Board Clerk [Counsel] pursuant to Rule 2.4(i)(4). If the decision of the trial panel is to suspend the accused for a period longer than 6 months or to disbar the accused, the matter shall be reviewed by the Supreme Court.

BR 10.2 Contested Admission And Reinstatement Proceeding.

Upon the conclusion of a contested reinstatement hearing, the trial panel shall file its written opinion with the Disciplinary Board Clerk and serve copies on Disciplinary Counsel, [and mail a copy to] the applicant and the State Court Administrator. Upon the conclusion of a character review proceeding conducted by the BBX, the BBX shall file its decision, accompanied by the record, with the State Court Administrator. Each such admissions and reinstatement matter shall be reviewed by the Supreme Court.

BR 10.3 Request For Review.

Within 28 days after the Disciplinary Board Clerk [Counsel] has acknowledged, as required by BR 2.4(i)(4), receipt of a trial panel opinion finding the accused not guilty or imposing discipline by reprimand or suspension not to exceed 6 months, the Bar or the accused may file with the Disciplinary [Counsel] Board Clerk and the State Court Administrator, a request for review as set forth in BR 12.8. A copy of the request for review shall be served on all parties.

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BR 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. [Objections to a cost bill in a matter involving a final Disciplinary Board decision shall also be filed with and resolved by the state chairperson of the Disciplinary Board.] The procedure for entry of judgments for costs and disbursements as judgment liens shall be as provided in ORS 9.536(5).

IT HEREBY IS ORDERED that the following amendments to Oregon State Bar Rule of Procedure (BR) 10.1, BR 10.3, and BR 10.4, are approved, as set out below (deleted text is in brackets and italics, new text is in boldface), and shall become effective only on the effective date of consistent amendments to ORS 9.536:

BR 10.1 Disciplinary Proceedings.

Upon the conclusion of a disciplinary hearing, the trial panel, pursuant to BR 1.8, shall file its written opinion with the Disciplinary Board Clerk and serve copies on Disciplinary Counsel, Bar Counsel and the accused. The trial panel shall file a copy of its opinion with the State Court Administrator. [If the decision of the trial panel finds the accused not guilty of all alleged misconduct or determines that the accused shall be disciplined by reprimand or suspension from the practice of law not to exceed 6 months, the Bar, through the SPRB, or] The Bar or the accused may seek review of the matter by the Supreme Court; otherwise, the decision of the trial panel shall be final on the [29th] 61st day following the notice of receipt of the trial panel opinion by the Disciplinary Board Clerk pursuant to Rule 2.4(i)(4). [If the decision of the trial panel is to suspend the accused for a period longer than 6 months or to disbar the accused, the matter shall be reviewed by the Supreme Court.]

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BR 10.3 Request For Review.

Within [28] 60 days after the Disciplinary Board Clerk has acknowledged, as required by BR 2.4(i)(4), receipt of a trial panel opinion [finding the accused not guilty or imposing discipline by reprimand or suspension not to exceed 6 months], the Bar or the accused may file with the Disciplinary Board Clerk and the State Court Administrator a request for review as set forth in BR 12.8. A copy of the request for review shall be served on all parties.

BR 10.4 Filing In Supreme Court.

(a) Record. Disciplinary Counsel shall file the record of a proceeding with the State Court Administrator upon the receipt by Disciplinary Counsel of:

(i) a trial panel opinion in any contested reinstatement proceeding;

[(ii) a trial panel opinion in any disciplinary proceeding resulting in disbarment or suspension in excess of 6 months;] or

(ii) [(iii)] a request for review timely filed pursuant to BR 10.3.

Upon receipt of the record, the matter shall be reviewed by the court as provided in BR 10.5.

[(b) Stipulation upon Review. Along with the record in a disciplinary proceeding in which the decision of the trial panel is to suspend the accused for a period longer than 6 months or to disbar the accused, the parties may, in lieu of the petition and briefs required by BR 10.5, file a stipulation that they find the trial panel opinion acceptable and the discipline imposed appropriate. If the stipulation is acceptable to the court, the matter shall be reviewed by the court without briefs and argument. If the stipulation is not acceptable to the court, the matter shall be reviewed as provided in BR 10.5.]

DATED THIS 17th day of June, 2003

Wallace P. Carson, Jr.
Chief Justice


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