BAR COUNSEL Invidious Harassment and Discrimination as Professional Misconduct Attacking Bias By Mark Johnson Roberts iStock hibited from engaging in legitimate advocacy with respect to the bases set forth therein. What do these rules mean? No Ore- gon case yet applies them. How will these new rules govern lawyer conduct? L ast year, Oregon became one of 23 states, plus the District of Co- lumbia, to amend their black- letter ethics rules to prohibit intimida- tion and harassment that is based on a person’s protected class status. Helen Hierschbiel, “Keeping Up with a Chang- ing World: New Rules of Professional Conduct,” OSB Bulletin (April 2015). 1 The new rules added an RPC 8.4(a)(7) and (c) 2 : (a) It is professional miscon- duct for a lawyer to: … (7) in the course of repre- senting a client, knowingly intimi- date or harass a person because of that person’s race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or dis- ability. … (c) Notwithstanding paragraph (a)(7), a lawyer shall not be pro- In the Course of Representing a Client Oregon’s RPC 8.4(a)(7) is limited to conduct that occurs “in the course of representing a client.” No Oregon law interprets this phrase in this context, but certain activities, such as deposi- tions and court hearings, fall well inside the scope of the rule. Similar phrases ap- pear as well in other parts of the code. RPC 4.1, for example, prohibits certain false statements and failures to disclose material facts, “[i]n the course of repre- senting a client.” Rule 4.1 has no direct predecessor in the Rules of Professional Responsibility (replaced by the Rules of Professional Conduct in 2005), but the prior false statement rule, DR 7-102(A) (5), also prohibited conduct “in the law- yer’s representation of a client.” The Oregon Supreme Court has dis- missed a charge of falsifying evidence un- der DR 7-102(A)(6) because it was not done in the representation of a client. In re Brown, 298 Or 285 (1993), superseded by rule as stated in In re Smith, 318 Or 47, 53 n 5 (1993). In Brown, the respondent lawyer received a conduct inquiry from the bar after loaning living expenses to a client, to be repaid from the proceeds of litigation, in violation of DR 5-103(B). The lawyer then prepared and filed a false affidavit from his client to support his defense to the charge of ethical miscon- duct. The court disposed of the DR 7-102 charge as follows: First we will consider DR 7–102. That disciplinary rule simply does not fit this situation. For example, DR 7–102(A)(4) states: “In [the] representation of a client, a lawyer shall not knowingly use perjured testimony or false evidence.” The phrase “representation of a client” is a condition precedent to the operative subdivisions of the rule. In other words, the lawyer cannot violate the rule unless he is repre- senting a client. Brown obtained the affidavit from Anderson, who was his client on a different issue. He was outside the scope of the attorney-client relationship when he dictated and asked Anderson to sign the affidavit. He procured the affidavit for his own defense in a matter with the Oregon State Bar. If Brown had a client when he asked for, prepared and received the affidavit, it was himself. Brown, 298 Or at 294-95 (emphasis in original). Afterward, the rule was amend- ed to cover lawyers representing their own interests as well. Smith. In the case of RPC 8.4(a)(7), the drafting committee made a decision not to include a lawyer’s activities in represent- ing him- or herself within the prohibition of the rule. 3 By contrast, the proposed amendment to the ABA model rule, discussed in the sidebar, would cover all “conduct related to the practice of law.” Knowing Intimidation or Harassment Intimidate and harass are not defined in the code but should be easily understood to encompass threatening behavior that goes beyond the bounds of what is re- quired to represent a client effectively. To intimidate means “to make timid or fearful; inspire or affect with fear; frighten;” es- JULY 2016 • OREGON STATE BAR BULLETIN 9