26 Trial Lawyer • Spring 2024 By Judge Melvin Oden-Orr Multnomah County Circuit Court When my son was in the sixth grade, he came home and told me about a social studies unit they were studying about the Romani or Roma people. After several minutes of listening to him, with Hon. Melvin Oden-Orr complete and utter confidence that I was about to show my son that I know stuff, I said, “Oh, Christopher, you’re talking about G_ _ _ _ _s!” His eyes opened wide in shock and he said, “Daddy, they don’t like to be called that. That is offensive to them. It is just like if someone called you the N-word.” I felt worse than I did when he told me, on any number of occasions, that I was not “cool.” This was worse because, in my son’s eyes, his father — his would-be role-model — had slurred people he didn't even know, albeit unintentionally. All I could say in response was, “I’m sorry. I didn’t know that term was offensive to them. That was not my intent.” I have not used that word or it’s shortened counterpart since that day, except to pass on the lesson my then 11-year-old taught me — something I knew in other context, including the example my son gave me — words have meaning and impact. And, they can have meaning and impact beyond what the speaker intends. Misconduct rules can change The rules governing lawyer conduct have changed over time, to reflect changing social norms, society at large, technological innovation and changes in the actual practice of law. For example, cannabis is now legal in several states, including Oregon. Many firms have developed practice areas around this burgeoning industry that remains illegal at the federal level and many states. Oh, and recall the days of running to the courthouse to file papers before 5:00? No more! Similarly, over the years we have seen a greater appreciation of diversity, both in our nation as a whole and within the legal profession. With these changes come more courageous conversations about the impact of prejudice and discrimination on people and our institutions. The law has changed to provide protection from such conduct, both in the criminal and civil context. One example, from the civil context, is the Civil Rights Act of 1964. Another more recent development is the passage of hate crime legislation in the criminal context. Practice areas have developed around issues of bias and harassment. And, in the last few years, the rules governing lawyer conduct have changed to reflect these changing social norms. In 2015, the Oregon Supreme Court amended Oregon Rules of Professional Conduct, Rule 8.4 to address the issue of bias and prejudice in the justice system. The substance of Oregon’s Rule 8.4 amendment adding subsection (7) provides: (a) It is professional misconduct for a lawyer to: *** (7) in the course of representing a client, knowingly intimidate or harass a person because of that person’s race, color, national origin, religion, age, sex, gender identity, gender expression, IN THE JUSTICE SYSTEM CONFIDENCE INSPIRING
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