February 22, 2013 - Oregon State Bar

OREGON STATE BAR
Board of Governors Agenda
Meeting Date: February 22, 2013
From:
David Wade, Chair, Governance and Strategic Planning Committee
Re:
Amendment of Fee Arbitration Rules
Action Recommended
Approve the recommendation of the Governance and Strategic Planning Committee
that Section 8 of the Fee Arbitration Rules be amended as discussed below and shown on the
next page.
Background
The OSB is subject to certain provisions of the Public Records Law by virtue of ORS
9.010(3)(f) as a result of which most records pertaining to the business of the bar are available
for public inspection on request. Since the inception of the OSB Fee Arbitration Program, we
have considered the records of fee arbitrations to be exempt from disclosure because they are
“confidential submissions” within the meaning of ORS 192.502(4). 1
This proposal adds language to Section 8 of the Fee Arbitration Rules to clarify that
General Counsel considers records submitted as part of the program to be confidential
submissions exempt from public disclosure. While not having this language has not been a
problem in the past, the clarification will be helpful in the event of a challenge. If the bar cannot
offer confidentiality to participants, they will likely decide not to participate in the program.
Because this method of low-cost dispute resolution provides a substantial benefit to the public
– by providing an easily accessible forum to determine the reasonableness of a fee – chilling
participation in the program would cause real harm to the public.
The proposed amendments also clarify that under certain circumstances General
Counsel may be required by law to disclose documents and records submitted by the parties
(e.g. if a court so orders). In addition, the amendments also clarify General Counsel’s obligation
to share documents internally with the Client Assistance Office and/or Disciplinary Counsel’s
Office to facilitate the investigation of any ethical violations.
1 That subsection exempts “[i]nformation submitted to a public body in confidence and not otherwise required by
law to be submitted, where such information should reasonably be considered confidential, the public body has
obliged itself in good faith not to disclose the information, and when the public interest would suffer by the
disclosure.”