27 Trial Lawyer • Spring 2024 sexual orientation, marital status, or disability. *** Notwithstanding paragraph (a)(7), a lawyer shall not be prohibited from engaging in legitimate advocacy with respect to the bases set forth therein. Nineteen other states have a similar rule. On August 8, 2016, the American Bar Association adopted its version as Model Rule of Professional Conduct, Rule 8.4(g). The conduct contemplated by the amendment is seen as undermining confidence in the justice system, a system with a sad history of often open hostility toward minority groups. Judicial conduct reflecting such bias is also prohibited. The Oregon Judicial Code of Conduct includes a counterpart, Rule 3.3. It provides: A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or others based on attributes including but not limited to, sex, gender identity, race, national origin, ethnicity, religion, sexual orientation, marital status, disability, age, socioeconomic status, or political affiliation and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so. Professionals set a higher bar The conduct proscribed in the ORPCs and the Oregon Judicial Code of Conduct only sets the floor for lawyers and judges. My sense is that most of us, whether we are new to the practice or pending members of the 50-year member club, are not asking, “What is the floor? What can I get away with? What is the bare minimum?” We are aiming much higher, aspiring to be true professionals, looking to inspire the confidence of the people — all the people — in our system of justice. We want to inspire the confidence of our clients and our colleagues, and of our children, that our system of justice is a place where everyone, regardless of race, religion, sex, nation of origin, disability, age, sexual orientation or socioeconomic status will be treated fairly and, at the very least, will not be intimated or discriminated against based on these characteristics. Inspiring confidence means treating people — all people — with the respect they deserve as fellow human beings. This idea of inspiring confidence in the justice system is at the heart of the idea of procedural fairness that Multnomah County Circuit Court, its judges and staff, have embraced for the past few years. Many of my colleagues and I are not asking, “What is the least I can do to meet minimal due process requirements?” Instead, we are asking, “Have I done enough to make sure that the parties, especially criminal defendants and unrepresented parties, feel they have been heard?” That’s what we’re doing. Opportunity for redemption No one is perfect. I became a judge because I wanted to inspire confidence that our system is fair. To do that, it needs to be true, or at least made truer each day through the continuous efforts of lawyers and judges aiming to treat all people with respect. I would love to say the lesson from my son was the last time I missed the mark. Sadly, it was not. Before becoming a judge, I was a hearings officer. On several occasions, I inadvertently misgendered parties during hearings. Each time I apologized and tried to move on, but the incident always stuck with me. I can only imagine how the person who was misgendered felt. I imagine they were humiliated having a person in authority call them Mr. or Ms. in front of a room full of strangers when that was not how they wished to be addressed. As a judge, I don’t want anyone to experience that in my court. So, in my court, I encourage everyone to indicate how they wish to be addressed. Inevitably, we all will miss the mark. The best we can hope from our colleagues and the public is to have an earnest apology accepted, and be able to move forward with the new knowledge to do better the next time. I think my son forgave me for my ignorance so many years ago. However, I know that he still does not think I am the least bit cool. Hon. Melvin Oden-Orr is a circuit court judge at the Multnomah County Circuit Court located at 1200 SW 1st Ave., Portland, OR 97204. Oden-Orr was appointed to the court by Governor Kate Brown in December 2017. He was previously chief hearings officer for the City of Portland. He can be reached at 971-2740664 or [email protected]. We are aiming much higher, aspiring to be true professionals, looking to inspire the confidence of the people...
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