By Tim Koch
There is currently a petition to amend ER 8.4, Rule 42, of the Arizona Rules of the Supreme Court to include the following language: “It is professional misconduct for a lawyer to knowingly manifest bias upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.”
Fifty-two lawyers (subsequently joined by a score or more of others), through the auspices of a putatively Christian firm based in Scottsdale, Arizona, called the Alliance Defense Fund, have submitted something they have entitled a “Concerned Attorneys Comment”. Not surprisingly, this group is up in arms that discrimination regarding sexual orientation and – most particularly – gender identity or expression should be grounds for finding professional misconduct. In their Comment to the Arizona Supreme Court, they identify the following Armageddon scenario:
Suppose that an attorney agrees to represent a client in his bankruptcy proceedings, and that later, after the attorney-client relationship commences, the client receives a marriage license from the State of Massachusetts for him and his same-sex partner, and that the client wants to argue that the bankruptcy court should strike down the federal Defense of Marriage Act and recognize that union. If the attorney, due to his sincerely held religious beliefs, decided that he could no longer represent the client in light of this new development, the proposed provision would seemingly prevent him from discontinuing the representation because his decision might be deemed to “manifest bias . . . based upon . . . sexual orientation.”
The lead counsel for this Comment, Alliance Defense Fund Senior Counsel Gary McCaleb, issued the following statement:
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. 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.
Here is my very simple question, writing as a 3-L who has been an ordained Christian pastor for over 25 years: Do any of these 70+ lawyers defend white-collar criminals? Do they have no “sincerely held religious beliefs” about embezzlement? tax evasion? driving while under the influence? If the response of any would be, “I have a sincerely held religious belief that everyone in America deserves full-hearted representation, no matter what their imputed crime or offense may be,” then why is his or her name on this Comment?