State's lawyers raise the bar with latest move
The Oregon Bar, headquartered in Tigard, is considering big changes to its lawyer disciplinary process.
(John Givot)
One of the most ambitious and controversial disciplinary cases in the history of the Oregon State Bar concluded a year ago when the state Supreme Court exonerated high-powered corporate attorneys Barnes Ellis and Lois Rosenbaum of ethical transgressions.
The reverberations of that landmark case are still being felt as the Bar considers sweeping changes to its disciplinary system intended to speed up the process and remedy other shortcomings highlighted by the Ellis-Rosenbaum case.
The proposals would make the process less transparent, keeping complaints secret until the Bar makes the decision to move ahead with a disciplinary case. They would also grant considerable new authority to a "professional adjudicator," who will oversee the system and serve as a judge on all disciplinary cases.
Veteran Portland lawyer Barnes Ellis (left,) shown here at a 2007 luncheon thrown in his honor.
The proposals are controversial, dividing even the committee formed to study the issue. Three committee members issued minority opinions critical of some or all of the recommendations.
The Bar's board of governors is scheduled to decide on the proposals on March 12. It is accepting written feedback from the public until March 2 and will hear public comments Friday at its meeting in Salem.
One of the primary functions of the Oregon State Bar is reviewing the hundreds of complaints it receives each year about lawyers' conduct in the state. In 2014, the Bar got more than 1,800 complaints. The Bar's disciplinary counsel's office opened 240 files and moved forward on 105 of those cases.
The Ellis-Rosenbaum decision was a bruising setback for the Bar's disciplinary counsel's office, which had spent seven years trying to prove its case. The flap stemmed from Ellis' and Rosenbaum's representation of Wilsonville defense contractor Flir Systems Inc. and several of its employees in an accounting fraud case dating back to 2000.
The matter eventually prompted investigations and charges from the U.S. Securities and Exchange Commission and the U.S. Attorney's office. Criminal defense attorneys for the individual Flir executives and the government questioned the multiple representations by Ellis and Rosenbaum, both of whom at the time worked for Stoel Rives, one of Portland's largest and most prestigious law firms.
In May 2013, a trial panel found the two lawyers guilty of conflicts of interest and misrepresentation and issued a public admonition.
Ellis and Rosenbaum immediately appealed. Last Feb. 19, the Supreme Court sided with Ellis and Rosenbaum on every issue and overturned the trial panel's ruling.
The Bar was already in the process of reviewing its disciplinary system. It asked the American Bar Association to take a hard look at the Oregon system in late 2014. Ellis has made it a personal priority to force change.
Ellis wrote letters to Bar leadership accusing the organization's disciplinary lawyers of misrepresenting facts. He volunteered to serve on the committee reviewing the process and has issued his own concurring opinion praising the proposed changes.
In an interview Thursday, he dismissed the current system as slow and inconsistent. Bar disciplinary rulings are reversed on appeal at an alarming rate, he added.
"I'd had a very unhappy experience of being a respondent in a very protracted Bar proceeding," Ellis said. "Based on that, I really felt that there were improvements that needed to be made. The length of time these cases take is obscene. That's bad for the lawyers and from a public protection point of view."
Arden Olson, of the Harrang Long firm in Eugene, said he's optimistic that creation of the "chief adjudicator" role who will serve as judge in all disciplinary cases will result in better decisions, too. "This will professionalize the Oregon State Bar and bringing it into step with other states," he said.
Richard Weill, another Portland attorney who also served on the committee, blasted its findings and Ellis in his minority report. Ellis' goal, Weill wrote, was "not public protection but how to protect lawyers such as themselves from the reputational consequences to an accused attorney and the economic consequences to an attorney of a disciplinary matter."
Weill was out of the country and could not be reached for comment.
Mary Cooper worked in the Bar's disciplinary counsel's office for 24 years before retiring last year. The Bar's pursuit of Ellis and Rosenbaum "was a totally righteous case," she said in an interview Wednesday.
As for the proposed rule changes, Cooper said it amounts to "regulatory capture," the phenomenon of regulatory agencies that cater to the interests of the industry it regulates rather than the public.
-- Jeff Manning
503-294-7606, jmanning@oregonian.com