Board of Governors Resolution No. 4
Amend Oregon RPC 8.4(a)(7)
Whereas, the Legal Ethics Committee and the Board of Governors formulated the following amendment to the Oregon Rules of Professional Conduct 8.4(a)(7);
Whereas, the House of Delegates must approve any changes in the rules of professional conduct before they are presented to the Oregon Supreme Court for adoption pursuant to ORS 9.490(1); now, therefore, be it
Resolved, that the amendment of Oregon Rules of Professional Conduct 1.8(d) as set forth below is approved and shall be submitted to the Oregon Supreme Court for adoption:
RULE 8.4 MISCONDUCT
(a) It is professional misconduct for a lawyer to:
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(7) in the course of representing a client in the practice of law, knowingly intimidate or harass a person because of that person’s race, color, national origin, ethnicity, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability.
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(c) Notwithstanding paragraph (a)(7), a lawyer shall not be prohibited from engaging in legitimate advocacy with respect to the bases set forth therein.
Oregon RPC 8.4(a)(7) was passed in 2015 prior to the American Bar Association (ABA) adopting a similar rule within the Model Rules of Professional Conduct. The ABA’s analogue to RPC 8.4(a)(7), Model Rule of Professional Conduct (ABA MR) 8.4(g), was passed in 2016. In February 2022, the Board of Governors (BOG) requested the Legal Ethics Committee (LEC) review Oregon RPC 8.4(a)(7) and recommend whether the rule should be amended to more closely conform to ABA MR 8.4(g).
ABA MR 8.4(g) reads as follows:
It is professional misconduct for a lawyer to:
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(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
The LEC formed a subcommittee that met over 2022 to review Oregon RPC 8.4(a)(7) and ABA MR 8.4(g). Upon the presentation of the findings of the subcommittee to the LEC, the LEC recommended two changes to RPC 8.4(a)(7).
First, the LEC recommended changing the phrase “in the course of representing a client” to “in the practice of law.” This phrase was felt to be broader and encompasses actions taken by lawyers in their role practicing law, which may not necessarily occur while representing a client. At the same time, it strikes a reasonable balance between the free speech rights of the attorney under the Oregon Constitution and the professional responsibilities of the attorney as an officer of the court. Conduct that would be considered inappropriate behavior while practicing law would be subject to discipline under this new provision. Oregon RPC 8.4(c) still contains an exception specifically for attorneys providing legitimate advocacy.
The LEC also noted that “ethnicity” was omitted from Oregon RPC 8.4(a)(7). The LEC recommended the addition of “ethnicity.”
The BOG agrees with the recommendations from the LEC and urges adoption of the proposed amendments.
Financial Impact
None stated.
Presenter:
Elizabeth Inayoshi, BOG, Region 4
Vote Percentages
Yes Votes: 131
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No Votes: 14
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Abstentions: 9
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Vote Tally
Name |
Yes |
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Catherine Schulist | Yes |
Nicholas Yanchar | Yes |
Jeremiah Ross | Yes |
Joanna Posey | Yes |
Emil Ali | Yes |
Sonya Fischer | Yes |
Joseph Walsh | Yes |
Ryan Jennings | Yes |
Michelle Vlach-Ing | Yes |
Peter Werner | Yes |
Joseph Piucci | Yes |
Timothy Williams | Yes |
Jennifer Kinzey | Yes |
Andrew Mittendorf | Yes |
Nora Coon | Yes |
Kristen Farnworth | Yes |
Richard Adams | Yes |
Victoria Dethloff | Yes |
John Devlin | Yes |
Elizabeth Savage | Yes |
Melanie Timmins | Yes |
Karen Moore | Yes |
Matthew McKean | Yes |
Christopher Larsen | Yes |
Derek Larwick | Yes |
Jordan Schoonover | Yes |
Justin Wright | Yes |
Stephanie Engelsman | Yes |
Joshua Lay | Yes |
Colleen Gilmartin | Yes |
Laura Coffin | Yes |
Stephanie Brown | Yes |
Ron Cheng | Yes |
Ryan Bickler | Yes |
Justin Kidd | Yes |
Russell Garrett | Yes |
Aurelia Erickson | Yes |
John Bachofner | Yes |
Kari Furnanz | Yes |
Benjamin Haile | Yes |
Michael Lowry | Yes |
Esther Smith | Yes |
Michelle Burrows | Yes |
Kimberly Fisher | Yes |
Theresa (Terry) Wright | Yes |
Heather Decker | Yes |
James Klonoski | Yes |
Cassie Jones | Yes |
Trevor Byrd | Yes |
Marilyn Heiken | Yes |
Emet Klepper | Yes |
Randy Harvey | Yes |
Andrea Madison | Yes |
Kathryn Clarke | Yes |
Maureen McGee | Yes |
H Zamudio | Yes |
Joseph Connelly | Yes |
Meliah Schultzman | Yes |
Curtis Peterson | Yes |
Mark Johnson-Roberts | Yes |
Kay Teague | Yes |
Kristie Gibson | Yes |
Sonia Montalbano | Yes |
Alison Pear | Yes |
Debra Maryanov | Yes |
Aaron Reichenberger | Yes |
Jus Singh | Yes |
James Gregory | Yes |
Lake James Perriguey | Yes |
Bradley Thayer | Yes |
Amanda Caffall | Yes |
Caleb Berthelsen | Yes |
Joshua Gums | Yes |
Victory Walker | Yes |
David Wade | Yes |
John Marandas | Yes |
Mary Pool | Yes |
Steven Arntt | Yes |
Adam LeBrun | Yes |
Brian Gardner | Yes |
Joseph Hesbrook | Yes |
Anastasia Gogol | Yes |
Earl Christison | Yes |
John Schlosser | Yes |
Tasha Winkler | Yes |
Amber Labrecque | Yes |
Juhi Aggarwal | Yes |
Andrew Schpak | Yes |
Emily Templeton | Yes |
Andrew Johnson | Yes |
Howard Newman | Yes |
Xi Chen | Yes |
Myah Kehoe | Yes |
Elizabeth Inayoshi | Yes |
Andrea Flanagan | Yes |
David Rosen | Yes |
Christopher Hill | Yes |
Jovanna Patrick | Yes |
Steven Berman | Yes |
James Dwyer | Yes |
David Doyle | Yes |
David Robinson | Yes |
Christopher Rounds | Yes |
Keiler Beers | Yes |
Janae Bly | Yes |
Barbara Long | Yes |
Damien Munsinger | Yes |
Elizabeth Knight | Yes |
Emily Shack | Yes |
Ryan Shannon | Yes |
Kellie Furr | Yes |
Vanessa Nordyke | Yes |
Robert Schulhof | Yes |
Ryan Collier | Yes |
Frederick Lundblade | Yes |
William Dozier | Yes |
Shannon Flowers | Yes |
Robert Milesnick | Yes |
Angela Engstrom | Yes |
Jason Mitchell | Yes |
Evan Christopher | Yes |
Apolinar Montero-Sanchez | Yes |
Kelsey Heilman | Yes |
Leslie Johnson | Yes |
Robert Kline | Yes |
Jason Posner | Yes |
Tyler Yeoman-Millette | Yes |
Megan Burgess | Yes |
Tomas Hernandez | Yes |
Jinnifer Mariman | Yes |
Tim Eblen | Yes |
Name |
No |
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Jon Conde | No |
Erin Lufkin | No |
Douglas Primmer | No |
Christopher Bergstrom | No |
Wendie Kellington | No |
Amy Bingham | No |
David Wu | No |
Shallon Halttunen | No |
Michael Stevens | No |
Andrew Teitelman | No |
Christopher Piekarski | No |
Kurt Mabis | No |
Blaine Clooten | No |
Ronald Elzinga | No |
Name |
Abstain |
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Paul Vames | Abstain |
Nicole Tudhope | Abstain |
Benjamin Cramer | Abstain |
Melissa Bobadilla | Abstain |
Erin Christison | Abstain |
Krista Evans | Abstain |
Greg Raburn | Abstain |
Christopher Cauble | Abstain |
Jason Voorhees | Abstain |