Chapter 13: Ethics

In covering an arrest or trial, a reporter may often feel frustrated by what he or she sees as a lack of cooperation from law enforcement officials. In asking questions of officers of the court, the reporter should bear in mind that formal guidelines or professional codes may restrict the amount of information that can be divulged in a particular case. These guidelines include judicial canons, state bar disciplinary rules, state law and the Oregon Bar-Press-Broadcasters Joint Statement of Principles and its accompanying guidelines, included in Chapter 1 as Appendices A and B.

Police Agency Personnel:

While some police agencies have public information officers who can be quite helpful, many reporters feel they are being kept from the best source of information. A reporter frustrated by this channel can lodge a grievance with the chief of police. In some police agencies, only certain people may be authorized to talk to the media.

A reporter who feels that the chief of police is being uncooperative can go to the chief’s superior, usually the mayor or city council. The head of the state police is the superintendent of the state police. In the case of an elected sheriff, there is no immediate superior.

Jurors: During the course of a trial, the members of the jury are instructed not to discuss the case, except when deliberating among themselves, until the case is concluded. Although there are no restrictions on jurors against talking to a reporter following a trial, they may choose not to.

State and federal grand jury proceedings are secret, even to the listing of jurors who serve on them. State grand jurors are sworn to secrecy for their term of duty while federal grand jurors are instructed to keep their official activities secret permanently. The only time the results of grand jury activities are released is through the return of an indictment or reports.

Attorneys:

Attorneys in Oregon are governed by a code of professional responsibility consisting of nine general canons of conduct, supported by specific requirements, known as disciplinary rules, and aspirational guidelines, called ethical considerations. The bar’s current code was developed by the American Bar Association to serve as a model of ethical standards for attorney conduct. The code was made binding on Oregon attorneys with its adoption by the Oregon Supreme Court in 1970. In 1983, the ABA approved a new code of professional conduct. That code has not yet been adopted by the state bar.

The State Supreme Court is responsible for establishing and enforcing the standards of ethical conduct for Oregon attorneys. The Court has original jurisdiction to hear disciplinary proceedings and is solely responsible for sanctioning attorney misconduct. Under the Court’s statutory authority and rules of procedure, the Oregon State Bar conducts investigations into allegations of unethical conduct by attorneys.

Because of a Supreme Court decision in 1976, disciplinary files of the state bar are available to the public under Oregon’s public records law. Any public record retained or prepared by the bar pertaining to the professional conduct of any member of the bar is available for public inspection, unless otherwise exempt under the public records law.

The disciplinary rules regarding attorneys cover all areas of practice, including advertising guidelines and trial publicity. The disciplinary rule which limits extra-judicial statements an attorney may make regarding a case in which he or she is involved is DR 7-107.

The types of information allowable under that rule in a criminal matter include: information contained in public records; the fact that an investigation is in progress; the general scope of the investigation; the identity of the victim of the crime; information on the arrest and investigation; a description of physical evidence seized at the time of arrest other than a confession, admission or statement; substance of the charge; scheduling or result of any step in the judicial proceedings; that the accused denies the charges made against him or her; and a warning to the public of any danger or a request for assistance.

Areas the attorney is not allowed to discuss include:

• The character, reputation or prior criminal record of the accused (including arrests, indictments or other charges of crime);
• The possibility of a plea of guilty to the offenses charged or to a lesser offense;
• The existence or contents of any confession, admission or statement or the refusal or failure to make one;
• The performance or results of any examination or tests or the refusal or failure of the accused to submit to them;
• The identity, testimony or credibility of prospective witnesses.

During the course of the trial, attorneys and members of their law firm are forbidden to make extrajudicial comments that could affect the outcome of the trial.

In a civil case, an attorney may quote from public records but is forbidden to discuss: evidence regarding the occurrence or transaction involved; character, credibility or criminal record of a party or witnesses; performance or results of examinations or tests or the failure of a party to submit to tests; opinions as to the merits of claims or defenses of a party; or any other matter which may interfere with a fair trial.

These rules do not preclude an attorney from replying to charges of misconduct publicly made against him or her from participating in proceedings of the legislative, administrative, or other investigative bodies.

These rules are based on Ethical Opinion 7-33, which says: A goal of our legal system is that each party shall have his or her case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury. Such news or comments may prevent prospective jurors from being impartial to the outset of the trial and may also interfere with the obligations of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal. For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.

As an added protection for the public resulting from dishonest conduct by attorneys, the bar’s policy-making body, the board of governors, established a client security fund. The fund is maintained through annual payments from all active members of the Oregon bar. When a client suffers a loss due to criminal activity or dishonesty by an attorney (losses not protected by malpractice coverage), he or she may file a claim against the client security fund with the state bar. A bar committee is vested by statute with the discretionary power to determine if reimbursement to the client is appropriate. As a prerequisite to having a claim against the fund, the client must have obtained judgment against the attorney arising out of alleged dishonest conduct, or the attorney involved must have been criminally convicted for the offense causing the loss.

Those with complaints against their attorneys follow a procedure that begins with a written complaint, referred to the general counsel of the bar.

Complaints filed with the bar follow a procedure that involves a response from the attorney who is being complained about, investigation by volunteer attorney committees and, where appropriate, referral to the Supreme Court for disciplinary action.

Judges:

When an attorney becomes a judge, he or she remains subject to the ethics of the profession but also must follow to a separate ethical code and disciplinary procedures.

The code of judicial conduct was adopted by the Oregon Supreme Court. Seven canons in this code pertain to the integrity of the judiciary, avoidance of impropriety, impartial and diligent performance of duties, professional activities off the bench, extra-judicial activities, compensation for extra-judicial activities and political activities.

The code is the standard of ethics in this state for all judges, whether serving full— or part-time or if they are attorneys. In many respects it follows a code of judicial conduct adopted by the ABA.

The Oregon Judicial Conference was created by state law as the official professional organization of all appellate, tax and circuit court judges. It has a standing committee on judicial conduct which assists in judicial education and interprets the conduct code in light of inquiries received from judges.

The investigation of formal complaints and recommendations for discipline against judges, however, are in the hands of the Oregon Judicial Fitness Commission. Under the State Constitution, the commission’s investigations are confidential unless a judge under investigation requests a public hearing. From its recommendations, the Supreme Court may take official disciplinary action to censure the judge or remove or suspend him or her from office. The commission’s record becomes public at this point in the proceedings. The powers of the commission and the Supreme Court were broadened by vote of the people in 1976 and the grounds for discipline were extended to include general incompetence and willful violation of the rules of conduct established by the court.

The commission is comprised of three judges appointed by the Supreme Court, three attorneys appointed by the board of governors and three lay members appointed by the governor with the approval of the Oregon Senate. Each of the commissioners serves for a specified term. A chairperson is elected annually from the members of the commission and, historically, is always a lay member or attorney, not a judge.

The commission meets quarterly. Employees have offices at Northwestern College of Law at Lewis and Clark College, 10015 S.W. Terwilliger Blvd., Portland, OR, 97219.

The commission has no formal procedures by which it accepts complaints. It prefers that complaints be written and submitted to the Lewis and Clark office. Complaints should describe the situation as completely as possible, including who else was present or witnessed the incident.

General complaints that the judge was “unfair,” “biased” or “didn’t listen to the evidence” are not satisfactory since they give the commission no basis for action. The fact that the judge ruled on the issue in litigation contrary to the way in which the complainant would have liked to have the ruling is not grounds for action. The commission can do nothing about litigation; if a judge rules wrongly, only appellate or other trial courts can correct the misjudgment.

Types of actions for which a judge may be suspended, removed or censured by the Supreme Court include: conviction in a court in this or any other state of a crime punishable as a felony or involving moral turpitude; willful misconduct in a judicial office where the misconduct bears a demonstrable relationship to the effective performance of judicial duties; willful or persistent failure to perform judicial duties; general incompetent performance of judicial duties; willful violation of any rule of judicial conduct established by the Supreme Court; habitual drunkenness or illegal use of narcotic or dangerous drugs.

Federal Government Ethics Rules:

The U.S. Government has its own ethics laws and regulations. Generally in federal litigation, only the Justice Department will issue press releases if they are involved in a case. With regard to documents and other materials, release and publication will be based upon the Freedom of Information act and the Privacy Act, as well as rules applicable to court proceedings.

In addition there is a government-wide ethics code applicable to all federal employees (with some variations for Congress, federal judges, and senior political officials.) The Justice Department also publishes its own guidelines and regulations on how it interprets other parties’ rights under the attorney-client privilege with regard to official federal investigations.

The best source of information on federal agency activities is usually the agency’s own public affairs or press coordination office. The personnel who staff these offices either have or can get the information on a matter that can be publicly released and often will put the information on a ready-to-use press release form.