April 2023
Multnomah
Lawyers associated for justice, service, professionalism, education and leadership for our members and our community
Lawyer
Est. 1906
New Options to Help in Ongoing Court Appointed Attorney Crisis by Hon. Cheryl A. Albrecht Chief Criminal Judge, Multnomah County Circuit Court The right to appointed counsel for those who cannot afford one has been a universal constitutional right in state cases only since the US Supreme Court issued the landmark decision Gideon v. Wainwright, 327 US 336, in 1963. Though in place only a relatively short period of time since legal rights were recognized 800 years ago, that right is perhaps the most important evolution in the fabric of modern criminal jurisprudence. Our criminal justice system is now structured with this fundamental precept at its center. ORS 135.045 codifies this right by requiring a court at the time of arraignment to determine whether the defendant wishes to be represented by counsel and, if so, to appoint counsel for anyone financially eligible. And so it has been, day in and day out for many decades, that Oregon courts have stood at the nexus of ensuring competent counsel for all who face the rigors of criminal prosecution and the loss of liberty - until this fundamental constitutional right, long overburdened, began a significant unraveling now well into its second year. Victims are left As Chief Criminal Judge for Multnomah with their own County, I manage the court processes constitutional involved in appointing attorneys. I first started noticing in the summer of 2021 the rights diminishing lengthening delays to find new attorneys or even vanishing to take on clients following a substitution. altogether. A significant percentage of substitution hearings involve people in custody on very serious charges. The delays over the summer and fall continued to increase and to my great dismay, the weeks turned to months by the end of the year. These cases require substantial investigation, negotiation and preparation, all of which stall as the person languishes in jail waiting for an attorney. Victims are left with their own constitutional rights diminishing or even vanishing altogether. On January 10, 2022, Metropolitan Public Defender (MPD) announced it would not be able to accept new appointments in minor felonies (generally non-Measure 11 felonies) for several weeks. Multnomah Defenders, Inc. (MDI) followed a few weeks later. They were following ethics opinions and new case counting standards adopted by the Oregon Office of Public Defense Services in response to a recommendation from a legislative-commissioned evaluation by the Sixth Amendment Center.1 Exacerbated by case delays experienced during the pandemic and accelerating staff turnover, case counts exceeded what the agencies say they ethically could accommodate. Disruptions in public defense services are not exactly unfamiliar. A recession-generated revenue shortfall late in the 2001-2003 biennium led to drastic cuts that postponed appointments in all misdemeanors and minor felonies for the last few months of the biennium. Public defender challenges have persisted across many jurisdictions for many years as detailed in various reports by the ABA Standing Committee on Legal Aid and Indigent Defense, including its most recent report, an analysis of attorney workload standards in Oregon in 2022.2
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When faced with the challenge in early 2022, local criminal justice system stakeholders scrambled. Minor felonies represent the majority of Multnomah County’s criminal cases. We collaborated to keep the system functioning as much as possible. Public defenders are on Attorneys in other counties stepped the front lines where up. Local consortium members individuals with high absorbed what they could. Many cases, including major felonies and risk, high acuity and person crimes, continued to receive high needs intersect with attorney appointments. a productive and safe We hoped we would be back on community. track with all appointments within a few weeks, or at the longest, a few months. It wasn’t long before optimism gave way to resignation then to bleak reality. The numbers tell the story. In December 2021, there were 60 people throughout the state who were unrepresented, 19 in custody. In early March, there were 780 unrepresented people, 71 in custody. In Multnomah County in early March, there were 382 people out of custody waiting for attorneys and 11 people in custody. This does not include people in warrant status, 567 in Multnomah County, or the hundreds more waiting in the wings to be charged pending better availability of attorneys. Continued on page 9 ______ 1 2
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Multnomah Bar Association Annual Meeting, Dinner & Judges Reception Wednesday, May 24, 5-8 p.m. Hilton Portland Downtown 921 SW Sixth Avenue Celebrating the profession and recognizing our colleagues MBA Diversity Award Recipient Judge Rima I. Ghandour Professionalism Award Recipient David B. Markowitz MBA Awards of Merit Judge Jacqueline L. Alarcón Emily Teplin Fox Jollee Faber Patterson Adele J. Ridenour YLS Award of Merit Caulin M. Price YLS Rookies of the Year Joseph C. Baxter Marry A. Karam Emily C. Templeton Pro Bono Awards Bethany A. Bacci Tiffany Davidson Elizabeth R. Lemoine Julie A. Stevens April Stone Register by May 15 at www.mbabar.org
April 2023 Volume 69, Number 4
mba CLE
Due to the COVID-19 pandemic, the MBA will be offering all seminars ONLINE ONLY unless otherwise listed. To register for a CLE seminar, please see p. 3 or visit www.mbabar.org/cle and input your OSB number to register at the member rate.
APRIL 4.4 Tuesday Residential and Commercial Foreclosures in Oregon Hope Del Carlo Tony Kullen 4.5 Wednesday Judicial Notice Judge Teresa H. Pearson Judge Katharine von Ter Stegge 4.6 Thursday Racism in Oregon History: A Brief Overview Eliza Cany-Jones Kerry Tymchuck 4.10 Monday Arbitrations in Oregon: The What, Where, Why, and How A.C. Estacio-Heilich Brad Krupicka Heather St. Clair 4.12 Wednesday State and Local Initiative Process Justice Stephen K. Bushong Steve Berman Katherine Thomas 4.18 Tuesday Ethical Duties Concerning Self-Represented Litigants Judge Christopher Ramras Nellie Q. Barnard 4.19 Wednesday Family Law Update Judge Susan M. Svetkey Patricia Arjun Amy Fassler 4.25 Tuesday Crisis Communications: Helping Your Clients Survive Both in the Court of Law and in the Court of Public Opinion Jenna Cooper Tim Resch Dave Thompson
In This Issue Calendar ������������������������������������������ 2 CLE �������������������������������������������������� 3 Announcements ������������������������������� 5 Ethics Focus ������������������������������������� 5 Around the Bar ��������������������������������� 6 News From the Court �����������������������10 Tips From the Bench ������������������������10 In Memoriam: William F. Schulte ������ 11 Profile: Referee Michael Riedel �������� 11 YLS �������������������������������������������������12 The Corner Office ����������������������������� 15 Classifieds ��������������������������������������16 Pro Bono Volunteers ������������������������16
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