Sadler v. Oregon State Bar

• Court: Oregon Supreme Court
• Writing for the Court: McALLISTER; HOWELL; TONGUE; I join in the views expressed by Howell
• Citation: Sadler v. Oregon State Bar, 275 Or. 279, 550 P.2d 1218, 83 A.L.R.3d 762 (Or. 1976)
• Decision Date: 17 June 1976
• Parties: , 83 A.L.R.3d 762 Russell SADLER, Appellant, v. OREGON STATE BAR, a Public Corporation of the State of Oregon, Respondent.

Page 1218

550 P.2d 1218

275 Or. 279, 83 A.L.R.3d 762

Russell SADLER, Appellant, v. OREGON STATE BAR, a Public Corporation of the State of Oregon, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 5, 1976.

Decided June 17, 1976.

Margaretta Eakin, Portland, argued the cause for appellant. On the briefs were N. Robert Stoll, John R. Faust, Jr., and Hardy, Buttler, McEwen, Weiss & Newman, Portland.

Joseph D. Robertson, Salem, and Howard A. Rankin, Portland, argued the cause for respondent. With them on the brief were Garrett, Seideman & Hemann, Salem, and Rankin, Walsh, Ragen & Roberts, Portland.

McALLISTER, Justice.

The plaintiff, Russell Sadler, brought this suit under ORS 192.450(2) to compel the Oregon State Bar to immediately

'A. Provide Plaintiff with a copy of any and all communications received at any time by the State Bar or related county Bar Associations relating to Attorney Jason Lee's professional conduct, and copies of any documents disposing of matters raised in those communications.

'B. Provide Plaintiff with a cope of any and all communications, received since the May 28, 1974 primary election relating to Attorney Jason Lee's election conduct and copies of nay documents indicating the disposition of matters raised in those communications.'

on the ground that the records were public records under the Inspection of Public Records Law, ORS 192.410 to ORS 192.500.

The trial court found the records were exempt from disclosure under ORS 192.500(2)(c) and denied the right of inspection. The plaintiff has appealed.

Before he filed this suit Sadler had both orally and in writing requested the records from the Bar. When his request was denied Sadler petitioned the Attorney General to order disclosure of the records. The Attorney General ordered the Bar to disclose the records. Again the Bar refused. Sadler then brought this suit. The Attorney General appeared in the court below as amicus curiae on behalf of Sadler.

Plaintiff first contends that the trial court erred in holding that defendant need not affirmatively plead that the records were confidential communications as defined in ORS 192.500(2)(c). In view of the disposition which we make of the case on the merits it is not necessary to consider this pleading question.

Plaintiff next contends that the records are not exempt from public inspection under ORS 192.500(2)(c). The statute provides in pertinent part as follows:

'(2) The following public records are exempt from disclosure under ORS 192.410 to 192.500:

'(c) Information 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; * * *'

The trial court made an In camera inspection of the records sought by the plaintiff and concluded that they were exempt under the above-quoted section.

Plaintiff contends that the Bar failed to prove that the records qualified as exempt records under the provisions of ORS 192.500(2)(c). It should be noted here that ORS 192.490(1) provides that 'the burden is on the public body to sustain its action.'

The first requirement is that the information requested was submitted to the Bar in confidence. When the Lee records were accumulated Supreme Court Rule 32 was in effect. It provided:

'HEARINGS NOT PUBLIC. Unless otherwise ordered by the Board, the investigation and hearings of disciplinary matters shall not be public, nor, unless ordered as aforesaid, shall the records of the proceedings in a disciplinary matter, prior to recommendation of the Board to the Supreme Court, be open for inspection, except to officers and governors of the state bar, to the investigator, to counsel for the state bar, to members of the trial committee, to the grievance committee, to the accused and to his attorney. The files and records of each grievance committee and each trial committee are the property of the state bar. Nothing in this section shall be construed to prevent the Board or its designate from advising the complainant of the status of any charge he has preferred against a member of the state bar.'

Assuming that any person who complained to the Bar about an attorney's conduct was aware of Rule 32, he would know that many persons, including the lawyer complained about, could examine the record. ¹ Rule 32 allows the Bar on its own motion to make the records public.

There is no evidence in the record that any person who complained to the Bar of the conduct of Jason Lee did so on condition or with the understanding that his complaint would be held in confidence. In the statement of the executive secretary of the Bar dated December 12, 1974 there is no suggestion that any complainant had ever declined to complain against a member of the Bar unless his complaint was held in confidence.

Rule 32 has been replaced by Rule 45, which makes all disciplinary records public as soon as a formal written complaint in a disciplinary proceeding is filed by the state Bar against an accused member.

Under both Rule 32 and Rule 45 the Bar would be required to advise a complainant that if his complaint resulted in the imposition of discipline the records would become public records and that under Rule 45 the records would become public records if a formal written complaint was filed against the person complained about. It is clear, therefore, that the rules making disciplinary records confidential in their earlier stages was not for the benefit of the complainant, but for the lawyer complained against.

The Bar argues and the trial court found that the public interest would suffer by disclosure. The two primary points made are that (1) individuals might not feel so free to complain if they knew their complaints might be made public, and (2) that frivolous or unfounded complaints would jeopardize a legal career. See McLaughlin v. Philadelphia Newspapers, Inc., 348 A.2d 376, 380--382 (Pa.1975). Plaintiff, on the other hand contends that the public interest would be best served by opening up the grievance procedure so that the public could be assured that high ethical standards were being maintained by the legal profession. This court noted the importance of providing the machinery for open criticism of the Bar in Ramstead v. Morgan, 219 Or. 383, 400, 347 P.2d 594, 77 A.L.R.2d 481 (1959), where it stated:

'* * * We regard it as important, therefore, that there should be no impediment to free criticism of the bench and bar lest it be interpreted by the public as a veil to hide judicial vices. * * *'

There is no evidence to prove, nor is it logical to assume, that the complainant would hesitate to criticize an attorney if such criticism would become public knowledge. The Bar's point that attorneys and judges would be reluctant to report their brethren seems more valid. A study of Bar discipline across the nation concluded that:

'* * * Lawyers rarely complain to disciplinary agencies about other lawyers. Judges, too, are reluctant to complain to disciplinary agencies about either lawyer performance or lawyer conduct. Instead, clients most frequently supply the regulatory inputs. * * *' Marks and Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation? 1974 Ill.Law Forum 193, 207.

Whether or not in this instance the public interest would be better served by disclosure or nondisclosure need not be decided, since the other requirements of ORS 192.500(2)(c) have not been met.

We conclude that the communications to the Bar relating to the professional conduct of attorney Jason Lee are not exempt from disclosure under ORS 192.500(2)(c) because there is no evidence that they were submitted in confidence and it is clear that 'the public body' (Bar) could not oblige itself in good faith not to disclose the information.

We next turn to the more difficult question of whether the Public Records Law violates the constitutional doctrine of separation of powers.

The Bar's position is that if the Public Records Law applies to its dsciplinary records and compels disclosure, then the law directly conflicts with Supreme Court Rule 32, in effect when this action was brought, and the current Rule 45. The Bar contends that under the separation of powers doctrine the exclusive power to regulate and control the practice of law inheres in the judiciary. The Supreme Court rule must be paramount and the legislature's attempt to change the rule is an unconstitutional invasion of the judicial function.

The plaintiff concedes that the application of the Public Records Law to the Bar would conflict with the court's rules. The plaintiff differs with the Bar in that he contends this does not necessarily make the statute unconstitutional. The separation of powers principle cannot in practice work absolutely; there is a necessary overlap between the governmental functions. The rule has evolved that legislation can affect the practice of law so long as it does not unduly burden or substantially interfere with the judiciary. Ramstead v. Morgan, supra.

The United States Supreme Court has ruled that:

'* * * (I)t rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counselor, and for what cause he ought to be removed. * * *' Ex parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856).

That case dealt with a state statute which prescribed conditions for admission to the Bar, enumerated offenses for mandating removal and the mode of proceedings. The Supreme Court found upon examination that the statute had not narrowed in any material way the discretion of the court, but was primarily a codification of the court's general rules and therefore was valid. Ex parte Secombe, supra, 60 U.S. at 14. A dozen years later in Randall v. Brigham, 74 U.S. (7 Wall) 523, 535, 19 L.Ed....