Oregon State Bar Bulletin — NOVEMBER 2014
Letters
It’s Time for House of Delegates to Go
In response to the President’s Message concerning the House of Delegates (“The OSB House of Delegates: A Relevant Governing Body, or a Missed Opportunity?”, October 2014), Tom Kranovich honestly weighs the good and the bad of the HOD. Unfortunately, there is not enough good to justify continuing the HOD. We would be better served by presenting issues to the entire bar via the Internet, allowing for debate and comments to be posted for a set period, and then allowing a vote by all members. The HOD has never been truly representative of the majority of the bar. It may be difficult to kill the HOD, but it needs to happen.
Jim Vick, Salem
Reject Proposed Amendments
I was a member of the committee that rewrote the proposed amendments to RPC 8.4(a)(7) to solve the prior version’s problems under Article I, Section 8, of the Oregon Constitution. I believe the new proposed Rule 8.4(a)(7) is redundant of existing disciplinary rules and is therefore unneeded. Existing prohibitions on engaging in criminal conduct reflecting adversely on a lawyer’s character and prohibiting any harassing conduct that lacks a legitimate purpose actually prohibit more bad attorney behavior than the proposed new Rule 8.4(a)(7).
If a lawyer is guilty of criminal harassment (while engaged in law practice or not), the lawyer undoubtedly has committed a crime that “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer” in other respects and can be disciplined under ORPC 8.4 (a)(2). So, amendment to Rule 8.4 is unnecessary to allow professional discipline to attach to such criminal conduct.
ORPC 4.4(a) provides that “in representing a client or the lawyer’ s own interests, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, harass, or burden a third person…” In two respects this prohibition is broader than the proposed Rule 8.4(a)(7) amendments: first, it applies to a lawyer representing the lawyer’s own interests in a matter, whereas the amendments to Rule 8.4 do not, and second, Rule 4.4(a) is generally applicable to all third persons; it is not limited to harassing conduct based on a person’ s membership in a protected class. I criticized the proposed rule during our meetings, requesting the amendments be made applicable to attorney conduct directed toward any third person without regard to protected class. That position received no other support, due I believe to the limitations placed on us by the Board of Governors. However, in the arena of attorney discipline, I am unaware of any principled basis to permit a lawyer to intimidate or harass a person who cannot claim membership in a protected class while forbidding harassment of those who can. Existing Rule 4.4(a) does not have that defect.
I believe existing RPC 4.4(a) already prohibits all conduct that would be prohibited under the amendments to Rule 8.4(a)(7), after applying its “legitimate advocacy” exception. In other words, if a lawyer’s conduct is protected from sanction under Rule 4.4 because the conduct has a substantial purpose other than ... ‘harass[ment],’ then the same conduct should also be protected by the “legitimate advocacy” exception under proposed rule 8.4. I am not a litigator, but remember when I was. The specter of facing disciplinary proceedings for engaging in zealous representation that includes, as a side effect, giving offense to an adversary or other person, is a highly unwelcome prospect to litigators. I believe it would be bad for the practice of law and the justice system overall.
The proposed amendments to RPC 8.4(a)(7), while possibly constitutional, are ill advised and should be rejected.
Kelly E. Ford, Beaverton
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