Attorneys to Ariz. Supreme Court: Don’t silence legal advocatesArizona Supreme Court should reject provision that would threaten to penalize attorneys who take certain legal positions
Wednesday, July 20, 2011
The proposed amendment would prohibit attorneys, in many instances, from expressing views that others might perceive as “biased” based on “sexual orientation” and “gender identity or expression.” The rule could be used to discipline lawyers who advocate for certain legal positions, including the view that the law should protect and preserve marriage as the unique union of a man and a woman.
“No one should have their free speech rights threatened just because they advocate a position that some consider politically incorrect. Stifling the advocacy of attorneys is simply unconstitutional,” said ADF Senior Counsel Gary McCaleb. “Our legal system promises all of its citizens the freedom to fully and fairly debate the important questions of our day. This proposed amendment needlessly undermines that constitutional guarantee within the very profession that protects constitutional rights.”
Seventy-two concerned attorneys signed on to the letter asking the Arizona Supreme Court not to grant the State Bar of Arizona’s request to amend ER 8.4, Rule 42, to read: “It is professional misconduct for a lawyer to knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client…” (emphasis added).
The attorneys supporting the letter, including ADF attorneys, argue that the proposed amendment to the provision is unnecessary, ambiguous, and unconstitutional--violating attorneys’ free speech and religious liberty rights. They note that such a rule could compel speech, constitute viewpoint discrimination, prohibit protected speech, violate the free exercise of religion, marginalize people of faith in the legal profession, and adopt an ethical rule not enacted in any other state.
In 2008, the Arizona State Bar considered a similar change to the Arizona Bar Oath of Admission, which would have required all attorneys to affirm that they would not permit considerations of “gender, race, religion, age, nationality, sexual orientation, disability, or social standing” to influence their work. Many of the 72 attorneys who oppose the newly proposed amendment also challenged that change, one that--after receiving a significant amount of public criticism--the bar chose not to pursue.
- Pronunciation guide: McCaleb (Mick-KAY’-lib)