Opinion
A4
Thursday, December 2, 2021
OUR VIEW
A move
worth
making?
O
regon allows insurers to use credit his-
tory, gender, marital status, educa-
tion, profession, employment status and
more to determine how much to charge for car
insurance.
Are those things directly linked to how well
you drive? No.
Do they help insurers gauge how much risk a
driver may pose? Insurers believe so.
Two bills earlier this year proposed stripping
insurers from being able to use those factors to
set premiums. Instead, insurers would have to
focus on driving record, miles driven and years of
driving experience. Apparently the idea is going
to be revived in a bill for the short 2022 session.
Is it the right thing to do? It’s not simple.
Gov. Kate Brown and Oregon’s Department of
Consumer and Business Services backed those
bills. Much of the department’s argument focused
on credit scores. A low credit score can mean
a person pays more for insurance even if their
driving record is clean. There’s also concern that
using credit scores can be discriminatory. Black
and Latino drivers are more likely than others to
have lower credit scores. Similar arguments about
discrimination were also made about allowing
insurers to use education, employment status and
occupation.
The department also challenged the assump-
tion that gender should be considered. For
instance, the National Highway Traffi c Safety
Administration has said that both men and
women are equally likely to be distracted drivers.
As for marital status, a person is not necessarily
a poorer driver because their spouse died or they
went through a divorce.
What would such changes mean for the insur-
ance industry? Other states, such as California,
have restricted what information insurers can use.
The department argued the insurance industry is
still strong.
There are, though, other things to consider.
It would mean premiums would go up for many
Oregonians. The department says people with
good or excellent credit ratings would face
increases and people with poor credit scores
would pay less. “The reduction in cost for people
with poor scores is four times the increase in pre-
miums for people with good or excellent scores,”
according to a chart the department provided.
Some people in Oregon also get discounts
because of their membership in a labor union or
other groups. Those would be eliminated. That’s
part of the reason the Oregon Coalition of Police
and Sheriff s have opposed such changes.
Lawrence Powell, an insurance analyst at the
University of Alabama, insisted in testimony
to the Legislature the predictors the insurance
industry uses are accurate and help match pre-
miums to risk. They aren’t perfect. They do help.
Occupation and education can help reveal things
that are diffi cult to observe such as risk tolerance.
Gender and marital status also can correlate with
miles driven, and when and where people drive.
He also said if Oregonians purchased their insur-
ance in California, which has many of the pol-
icies in the bills, they would have paid more by
about 7%.
It’s not easy to know who will be a safe driver.
Should the state of Oregon dictate how insurance
businesses can evaluate drivers? Tell you legisla-
tors what you think. You can fi nd them here: ore-
gonlegislature.gov/FindYourLegislator/leg-dis-
tricts.html.
OTHER VIEWS
Ethics in short supply with DA, state bar
ANNE
MORRISON
THINKING OUT LOUD
A
s an attorney for more than
30 years, I’ve always appre-
ciated my profession’s theo-
retical adherence to ethical princi-
ples. Law students must complete a
course in legal ethics; applicants to
the bar must demonstrate knowledge
of ethical rules; attorneys must take
ongoing training in legal ethics.
Of course I understand that those
rules are somewhat aspirational. But
still, they exist.
The most signifi cant ethical rules
address attorney honesty. Oregon’s
rules prohibit a lawyer from know-
ingly misstating anything to a tri-
bunal, whether material or not,
whether fact or law, whether orally
or in writing. Sometimes, failure to
make a disclosure is the equivalent
of an affi rmative misrepresentation.
Complete candor to the court
is expected, and “a half-truth or
silence can be as much a misrep-
resentation as a lie.” Oregon’s
Supreme Court has stated, “The
community expects lawyers to
exhibit the highest standards of
honesty and integrity, and lawyers
have a duty not to engage in con-
duct involving dishonesty, fraud, or
interference with the administration
of justice.”
But what if the bar chooses to
abandon its longstanding require-
ment that attorneys always act with
the utmost honesty in their conduct
as attorneys?
In April 2020, Union County
District Attorney Kelsie McDaniel
fi led a motion to disqualify Judge
Wes Williams from hearing crim-
inal cases in Union County.
Although no reason is required
to disqualify a judge, McDaniel
included a gratuitous memorandum
describing scores of incidents that
she claimed demonstrated Williams’
bias against the state and favoritism
toward defendants, then immedi-
ately contacted The Observer to
publicize her allegations.
The problem?
A comparison of the memo-
randum with transcripts of the
actual hearings showed that
McDaniel repeatedly misrepresented
Williams’ rulings — most fre-
quently, by omitting critical context.
McDaniel’s memorandum charged
that Williams showed favoritism for
the defendant when he refused to
sentence a nine-time DUII defen-
dant to jail — but omitted the jail’s
concern that the defendant’s medical
care would nearly deplete the jail’s
entire medical budget.
The memorandum claimed that
Williams exhibited bias against
the state when he started a hearing
with no prosecutor present — omit-
ting the on-the-record discussion
that the prosecutor had silently
slipped out of the courtroom without
notifying Williams, leaving Wil-
liams unaware that the prosecutor
was absent. Given that an attorney
need not provide any reason to dis-
qualify a judge, McDaniel’s pur-
pose in misrepresenting Williams’
actions appeared to be to discredit
and defame.
In June 2020, I fi led a bar com-
plaint alleging that McDaniel made
16 serious misrepresentations in her
descriptions of Williams’ behavior.
The bar addressed just two, and dis-
missed my complaint. Signifi cantly,
the bar did not exonerate McDaniel
— it never found that McDan-
iel’s descriptions were accurate or
truthful. Instead, the bar dismissed
on a technicality, reasoning that
because an attorney need not show
evidence of bias to remove a judge,
the unneeded examples could not be
“misrepresentations,” even if inac-
curate or untrue.
Instead, any factual discrepan-
cies should be viewed as simply
refl ecting McDaniel’s “perspective”
of Williams’ actions.
The bar’s reasoning contradicts
longstanding law that prohibits a
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lawyer from knowingly misstating
anything to a tribunal. Instead, the
bar has determined that an attor-
ney’s duty to be honest is now “con-
textual.” Even if an attorney’s por-
trayal of events is distorted, or
inaccurate, or completely made up,
she may still present them as fact
if she claims that they are the basis
for her “perception” of bias. The bar
refused to address the charges of
dishonesty on the merits, to the det-
riment of our entire community.
Days after the Oregon Bar
decided that, at least sometimes,
providing intentionally misleading
information to the court and public
does not constitute misconduct in
Oregon, the New York Supreme
Court suspended Rudolph Giuliani’s
license to practice law because
Giuliani made “demonstrably false
and misleading statements” to the
courts and public. That court noted
its inherent duty “to protect the
public in its reliance upon the integ-
rity and responsibility of the legal
profession”:
“When … false statements are
made by an attorney, it … erodes
the public’s confi dence in the integ-
rity of attorneys admitted to our
bar and damages the profession’s
role as a crucial source of reliable
information. It tarnishes the rep-
utation of the entire legal profes-
sion and its mandate to act as a
trusted and essential part of the
machinery of justice. Where, as
here, the false statements are being
made by respondent, acting with
the authority of being an attorney,
and using his large megaphone, the
harm is magnifi ed.”
It has been discouraging to learn
how little value our own county’s
district attorney places on the prin-
ciple of truthfulness. It is even more
demoralizing to discover that the
ethical standards of our state bar are
equally low.
———
Anne Morrison is a La Grande
resident and retired attorney who has
lived in Union County since 2000.
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