In my view at 40,000 feet this is what is happening across the nation. The large firms have discovered a way to marginalize the obstreperous whistleblowers from regular folks.
Federal Suit Against Oregon State Bar Alleges Favoritism and Discrimination
Friday, February 27, 2015
Annie Ellison, GoLocalPDX Reporter
A lawsuit filed in U.S. district court against the Oregon State Bar (OSBar), and the bar’s general counsel, alleges favoritism and bias in how the organization administers complaints against lawyers.
The suit alleges decisions on more than 3,000 complaints against Oregon lawyers were delayed, and that complaints from clients charged with a crime were disproportionately more likely to be dismissed. Furthermore, lawyers at some of the city’s largest firms were up to three times less likely to be disciplined, the suit alleges.
Software developer and former VP of Marketing for Oracle Corp. James Reilly and Victoria Jelderks filed the suit Feb. 26 against the Oregon State Bar Association and general counsel Helen Hierschbiel.
“If you are from an influential firm in the state of Oregon, you can do whatever you want and the bar can dismiss it,” Reilly said. “As a consequence, these big firms are breaking the law with impunity.”
“It undermines due process and equal justice under the law,” Reilly said. “Others living in the USA might have had their lives destroyed by a negligent or incompetent lawyer or even worse an unethical prosecutor.”
Out of 1,493 complaints against lawyers in criminal cases between 2011 and 2014, 140 were disciplined.
Complaints and Appeals claim
As OSBar General Counsel, Helen Hierschbiel handles OSBar complaints and appeals, advises members on legal ethics questions, including identifying applicable disciplinary rules and providing reactions to ethics questions.
Reilly and Jelderks are demanding $100,000, calling for Hierschbiel’s suspension, an investigation into her record of dismissals, and a referral of all appeals older than 90 days to the bar’s disciplinary committee. under 18 USC 242, deprivation of rights under color of law, and 42 USC 1983, civil action for deprivation of rights, and malfeasance in office.
The suit calls for an injunction against Hierschbiel preventing any more dismissals, a review of and “that a formal investigation into the unfair practices at the Oregon State Bar be initiated with the ultimate goal of removing control of disciplinary actions and review from the Bar itself to a judicial body that can act independent of coercion from influential or corrupt bar members.”
Over the course of three years, firms with less than two staff were found to be at least twice as likely to have a complaint referred for discipline, according to Reilly’s data findings. Over those three years, 2324 complaints were filed against lawyers at small firms. Of those, 451 were disciplined and 32 were on appeal. In total, 19.4 percent of complaints were disciplined at small firms.
Between 2011 and 2014, 1263 complaints were filed against lawyers at firms with more than two staff members. Of those, 109 were referred for discipline and 24 were on appeal. In total, 8.6 percent were referred for discipline.
The suit also alleges Hierschbiel, the 15-year general counsel, failed to recuse herself from a Sept. 25, 2014 conflict of interest complaint filed by Reilly against Shannon Armstrong, then the Chair of the OSBar’s Legal Ethics Committee. Hierschbiel and Armstrong served together on a 2013 bar committee.
Reilly and Jelderks’ suit dates back to a 2014 OSBar complaint against two lawyers from the firm Markowitz Herbold for an alleged misrepresentation to the city of Vader, Wash.
Blue Array, a company owned by Jelderks and Reilly, installed a wastewater treatment plant in Vader, and as part of the ongoing arbitration over the company, now dissolved, MH lawyers acted on behalf of Reilly’s investor, JH Kelley LLC.
Reilly’s 2014 complaint was dismissed, he claims without it being read.
Based on the data, the suit alleges Hierschbiel “biases her decisions against smaller firms’ complaints [and] is eight times more likely to dismiss complaints made by incarcerated convicts.”
The papers filed Feb. 26 also call for a fund to be set up to assist convicts whose complaints were “wrongly dismissed by the OSBar.”
In a letter to District Judge Anna J. Brown Feb. 16, Reilly wrote his data reveals a backlog of complaints under appeal that extend several years.
According to a Nov. 17, 2014 email sent to Reilly from Hierschbiel, there is no time limit on how long it takes the bar to respond to an appeal if a complaint is dismissed.
All complaints regarding Oregon lawyers are first reviewed by the bar’s Client Assistance Office, which determines whether the complaint is to be investigated and referred to the Disciplinary Counsel’s Office, or dismissed.
Based on the findings of an American Bar Association report, the Oregon Discipline System Review Committee at the OSBar is reviewing the disciplinary processes.
The report’s 19 recommendations included several measures to streamline and enhance the transparency of the the disciplinary process, improve the efficiency and consistency of disciplinary hearings, limit the function of the State Professional Responsibility Board, and establish clearer rules and better coordination among departments.
OSBar spokeswoman Kateri Walsh said the organization was not aware of the suit and would not comment.
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