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 If the attorney, due to his sincerely held religious beliefs, decided that he could no longer represent the client in light of this new development, the proposed provision would seemingly prevent him from discontinuing the representation because his decision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?

52 thoughts on “Outing Hypocrisy

  1. The scenario they put forward is simply ridiculous. I think I missed the class in professional responsibility where any lawyer is required to continue representing a client in a major constitutional case just because they originally signed on to handle a simple bankruptcy.

  2. I find this as frustrating as pharmacists who cry for an exemption from filling RU 486 prescriptions because it’s against their religious beliefs. My answer? Don’t become pharmacists. Do your professional duty.

  3. The simple answer to the author’s simple question: no, ADF don’t defend white-collar criminals, tax evaders, or DUI’s. They defend religious liberty. Similarly, while bankruptcy lawyers do defend white-collar criminals and tax evaders, they generally don’t attack or defend the constitutionality of Congress’s definition of a marriage. If such an attorney has a sincerely held, constitutionally protected, religious belief that homosexual behavior is sinful, the law cannot compel that attorney to pursue a lawsuit that – if successful – would legalize behavior that the attorney’s religious beliefs oppose.

    There will always be plenty of attorneys ready and willing to attack and defend both sides of the sexual orientation/gender identity legal controversies. The law shouldn’t compel every attorney to take one side of that issue, nor should it exclude an attorney from the legal profession for refusing to violate her sincerely held religious beliefs.

    An attorney is not a hypocrite if he believes every client deserves the best representation possible, but at the same time believes there are certain issues better left to other attorneys.

  4. Nate, on first reading the rule, I had a similar response. But, upon a closer reading of the rule, it is limited to “in the course of representing a client” and even then “does not preclude legitimate advocacy when such classification is an issue in the proceeding.”

    I don’t see how that doesn’t work completely with any point of view. The rule is so toothless that it’s almost a non-rule, and it certainly doesn’t compel any attorney to take any case they don’t want to take since bias in taking cases would be before the course of representation and therefore before the rule kicks in. Limited as it is, really the only way someone could violate the rule would be if they take a case they know full well they shouldn’t be taking, and then proceed to act in an inappropriate way towards a client that has already retained them. The rule doesn’t apply in any case where sexual orientation (or race, gender, etc.) is an issue, so it doesn’t preclude any lawyer from taking any side in a legitimate dispute of that sort.

  5. Ms. Clymer,

    It amazes me how some people, such as yourself, can be so closed minded. I know it is hard for you to understand, but some pharmacists may find destroying human life against their professional duty. I find it very disheartening that you would try to force your views on abortion upon pharmacists who happen to not agree with you.

  6. The problem with the question posed at the end of this article is that the writer is comparing apples to oranges. I first would ask him if he compares tax evasion, embezzlement or DUI with sexual orientation? Surely not – so why ask the attorneys who have signed this to do so?

  7. As I said, if the job duties of a particular profession go against your religious beliefs then maybe you should rethink entering that profession — that’s not closed-minded, that’s being practical. As for pharmacists in particular, they are trained to dispense drugs, to make sure that whatever it is you are taking combined with your other prescriptions won’t make you sick or kill you — they are not there to pass a moral or medical judgment; they are there to count out pills, fill prescriptions, explain how you unscrew the cap off the bottle.

    Should they be allowed to not fill a prescription for birth control? If so, their “moral” judgment prevents a woman from exercising her recognized right to birth control, which is what RU-486 is — emergency contraception.

    P.S. Imagine the outcry if they didn’t fill a Viagra prescription, why Congress would call for an investigation.

  8. If anything is a choice, it’s the religion you choose to practice. As for sexual orientation … got to invoke Lady Gaga, “Baby, I was born this way.”

  9. I wasn’t aware they’d found the “gay gene.” Can you cite to the studies that prove sexual orientation is genetic?

  10. I disagree, Mat. The proposed rule is for professional misconduct. Attorneys get disbarred over that – hardly toothless.

    It seems that you agree, though, this rule will compel an attorney to violate her sincerely held religious beliefs or face professional misconduct charges. You seem to be arguing that we just shouldn’t worry about it because it only happens in unusual situations like the bankruptcy example above.

    Even though the rule may only apply in limited situations, the rule still says you are not welcome as an attorney if you believe in a God who disapproves of homosexual behavior or dressing as a different sex. America is not a country that compels people to change their religious beliefs through the force of law. On the contrary, she encourages her citizens to debate religious beliefs through freedom of expression.

  11. ERs provide that an attorney may withdraw representation if doing so would not have a material adverse effect on the interests of the client. If an attorney in the ADF hypothetical withdrew in a timely manner, and perhaps returned his or her retainer, such a withdrawal would certainly not be prejudicial to the administration of justice. I assume the same attorney would also withdraw representation from a creditor when a debt should have passed through a jubilee.

    I am equally concerned as the “concerned attorneys” that Mr. McCaleb believes his free speech is threatened because he, as an attorney, may not 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. I included race, gender, etc., because Mr. McCaleb has not offered a reason why his comment on the first amendment should only apply to sexual orientation and gender identity and expression.

    Attorneys not only represent clients, but are officers of the court, and I am glad that the ethical rules hold attorneys to higher standard against hatred.

  12. Nate, Tim is clearly talking about the attorneys that signed on to this letter, not the ADF generally. If you take a moment and Google a couple of those names, you’ll see that they DO take criminal defendants. Mr. John J. Jakubczyk, for example, is happy to profess is pro-life stance on the same page that he offers to defend those accused of DUI’s, white collar, and other crimes. He’s also happy to refer you if you seek a divorce. He will provide you with the best legal defense of your sins, just as long as you aren’t gay. Killers? Come on down! I’ll work to help you get away with murder! Gays? Stay away! Your sins repulse me! Yeah, that’s pretty blatant hypocrisy.

    Also, repealing DoMA would NOT legalize “homosexual behavior.” The Supreme Court already took care of that.

  13. Mr. Riggs:

    I appreciate your attempt to educate me that repealing DOMA would not legalize homosexual behavior, but I think that was already fairly clear. What declaring DOMA unconstitutional WOULD do is require a state to condone a union that it otherwise may not have.

    Now I don’t claim to know what God Mr. Jakubczyk believes in, but there is an obvious difference between defending someone who is accused of breaking an existing law (DUI, murder) and actively working to change the law (declaring DOMA unconstitutional). Perhaps Mr. Jakubczyk’s God understands this difference. Or perhaps Mr. Jakubczyk requires his clients to repent of their sins as a condition of representation. Perhaps such an attorney will only represent parties to a divorce if Biblical (or perhaps Quranic?) grounds exist for the divorce.

    Of course, not every case where this proposed rule comes into play will involve the same distinction, but this was the example that was given.

    What does come into play in every case is the real argument being made by Dr. Koch and other supporters of this proposal, which isn’t even a legal or policy argument at all: it’s a theological argument.

    Dr. Koch’s argument essentially boils down to this: 1. I’m an ordained Christian minister, 2. My God supports homosexual behavior and atypical gender expressions, therefore 3. No one else has a right to believe in a God who doesn’t support these things (or at least they have to disobey their God if they want to be a lawyer). So, even though for at least 3600 years, Jews believed in a God who disapproves of homosexual behavior, Christians believed in a similar God for 2000 years, and Muslims for 1300 years, none of these people are welcome to be attorneys in Arizona unless they worship the new right-thinking 21st century God of liberal America.

    In America, the law should treat everyone with equal dignity and respect, regardless of their religious beliefs or their sexuality. Rejecting this rule harms no one, but adopting it excludes or punishes an entire class of people solely for obeying their sincere religious beliefs.

  14. “As for pharmacists in particular, they are trained to dispense drugs, to make sure that whatever it is you are taking combined with your other prescriptions won’t make you sick or kill you…” This is interesting since RU-486 is in fact an abortifacient, which means it does end someone’s life… Plus, pharmacists, as well as any other medical professional, are indeed supposed to exercise some sort of moral judgment. They are not just robots forced to succumb to all of their patient’s desires. Just like lawyers have the responsibility to counsel clients and not simply perform whatever the client may wish at any given time, medical professionals are suppose to exercise their judgments as well to ensure adherence to their hippocratic oath- even at the expense of possible litigation.

  15. I wasn’t aware there is any proof that God exists. Can you cite the studies that prove God exists?

  16. Are pharmacists medical professionals? Or chemists? Do they take the Hippocratic oath? Are they suppose to exercise moral judgments or are they sworn to follow an ethical oath based on their profession. I think it’s important not to mix the two. Do our morals guide us in how we conduct ourselves in life, love and our chosen profession? Absolutely. But I believe that can differ from what professional obligations demand of us. Again, you moral view as pharmacist who refuses to dispense RU-486 infringes on a woman’s legal right to birth control. These exceptions are designed to impede a woman’s right to make decisions about her own body.

    As to whether RU-486 “kills” depend on whether you believe life begins at conception, at 28 weeks, or upon birth.

  17. What is with all the unreasonable fear of LGBT rights? You cannot treat people as sub-human beings.

  18. Gosh, I did not know I was so famous (or perhaps infamous) as to be the subject of blog comments. Since neither gentleman knows the scope of my practice, or the years, or the kind of persons that I represented, perhaps you will allow me a point of personal privilege to explain such matters as well as why I thought it appropriate to sign on the the comment.

    Kyle thinks he is being funny but the truth is that representing individuals charges with criminal acts is a serious matter. In my 32 years of representing individuals, I have had clients who called themselves “gay” or acted out in ways that personally I found to be very offensive. This did not prevent me from representing them in the cases for which they were charged or in preparing documents that would formally protect their assets, or in handling probate matters after one of their partners had passed. You see despite the calumny, most of us who oppose certain behavior do not “hate” the individuals who engage in it. In all of the years, everyone who has retained me to represent them in whatever matter has known my general philosophy on life, liberty and the rule of law. So Kyle, please refrain from presuming to know who I would represent and what i would think.

    I will also add that I have had some very interesting and sometimes heated discussions with clients on such matters. They always have the freedom to “fire” their lawyer if they do not like him. The lawyer also has the right, freedom and sometimes duty to “fire” his client (sometimes to preserve his sanity) should the situation warrant.

    As for the reason i signed my name to the Comment, it is my measured consideration that I do not need the Bar or anyone else to tell me that “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 when such actions are prejudicial to the administration of justice;…” What does that mean? Have the thought police taken over the Bar? If I think or say that homosexual activity is inappropriate or wrong or “deviant behavior” as was the way it was referenced in the DSM III prior to 1973, the last thing I need is someone accusing me of “professional misconduct.” If I think or say that certain behavior is not healthy, why should the Bar claim that such words are “biased or prejudiced?” And since when does the decision of what is bias and prejudice rest with a subjective person who can make a decision based upon his or her own bias and prejudice.

    The whole thing is so ambiguous as to be laughable if it was not being seriously considered.

    As a lawyer I have and will probably continue to represent people of all walks of life, of all backgrounds of all races, colors, creeds and religions. That has in the past included the “gays” and “lesbians” and some who were still trying to figure it out. My professional duty is to do the best job I can to properly and effectively represent my client. I do not need the State Bar changing the rules and adding something that can be manipulated by those with a political and social agenda. The ADF statement identifies the free speech issues as well as others and should be appreciated for being a clear statement that protects rights of conscience.

    I am sure this statement will only add fuel to the fire. Nevertheless, to all I wish a very good day.

  19. I don’t know why a client would want an attorney to represent his case if that attorney has serious moral objections. Wouldn’t the client worry that the moral objections would impair the attorney’s ability to forcefully advocate their cause? I understand that lawyers are supposed to submit their own beliefs to the will of their client, but the subconscious is funny thing. Even if the attorney proceeds to argue in good faith, I am not sure he could swear without doubt that that his ability wouldn’t be impaired or even sabotaged by his divided will. That is especially true of cases that implicate deeply held religious convictions. The attorney would be fighting himself and opposing counsel. In fact, I would think that a lawyer would have a professional obligation to drop or refer the case when he reasonably believes that his ability to advocate for his client is impaired by opposing moral beliefs. I for one would want my attorney to be upfront about his concerns and divided loyalties instead of plowing through and suffering a losing verdict.

  20. @ Nate: Do you sincerely believe that this is my argument (beyond point 1)? Really now? At least own that this is how you react to what I set forth. I am sorry that you would caricature me in this way.

    1. I’m an ordained Christian minister, 2. My God supports homosexual behavior and atypical gender expressions, therefore 3. No one else has a right to believe in a God who doesn’t support these things (or at least they have to disobey their God if they want to be a lawyer). So, even though for at least 3600 years, Jews believed in a God who disapproves of homosexual behavior, Christians believed in a similar God for 2000 years, and Muslims for 1300 years, none of these people are welcome to be attorneys in Arizona unless they worship the new right-thinking 21st century God of liberal America.

  21. Dr. Koch,

    I sincerely apologize if you found my characterization of your argument offensive. In reading the text of your blog, I didn’t find any analysis. I only saw your statement that you have “been an ordained Christian pastor for over 25 years,” followed by your assertion that Christian attorneys who defend clients against criminal charges while at the same time oppose a rule forbidding them from advocating their Christian beliefs are hypocrites.

    Since you stated that you are an ordained Christian pastor, and you accused Christian attorneys of not following Christian doctrine, I understood your argument to be theological. Again, I apologize if I was mistaken.

    Regardless of my mistake, I assume that you support adopting the proposed rule. The Petition in support of the proposed rule reads:

    “This amendment makes it clear that a lawyer who, in the course of his or her legal practice, knowingly manifests, by words or conduct, bias or prejudice based on . . . sexual orientation [or] gender identity or expression . . . violates the Ethical Rule . . . with the sole exception that biased or prejudicial comments may be asserted in the form of legitimate advocacy when . . . sexual orientation [or] gender identity or expression . . . are issues in a legal proceeding.”

    Let’s say a fictional attorney – Bob – feels called by his God to work for a religious public interest firm. Bob only advocates issues that he feels called to advocate. Bob publishes an advertisement arguing that marriage is only the legal union of one man and one woman. The advertisement lists his firm’s website and contact information, where readers can find educational resources and information about how to petition the legislature in support of this cause.

    Since Bob is “a lawyer who” works for a religious public interest firm, and “in the course of his or her legal practice” published an advertisement that says marriage ought to be between a man and a woman, he thereby “knowingly manifest[ed], by words or conduct, bias or prejudice based on . . . sexual orientation.” Therefore, he has “violate[d] the Ethical Rule” because his advertisement did not fall under “the sole exception that biased or prejudicial comments may be asserted in the form of legitimate advocacy” because his advocacy was not related to “issues in a legal proceeding.”

    If I am correct that you support this Petition, then you believe Bob should be disciplined for publishing this advertisement. Is there a legal reason or a policy reason that Bob should be disciplined?

  22. In your hypothetical, Bob was not “in the course of representing a client,” so if he violated an ethical rule, it was not have been the one in question.

    As a side note, I did not accuse Christian attorneys of not following Christian doctrine. I simply, by indicating my ordination, named myself as a fellow person with “sincerely held religious beliefs.”

  23. Fair enough. I think the rule is broader than you and Mat seem to argue, but perhaps my example is beyond the rule’s scope.

    Whatever the rule’s scope, though, when it does apply, it necessarily requires a religious attorney to choose between actively advocating a cause her religion forbids her from advocating, or obeying her conscience and facing discipline. My question is why advocate such a rule?

    Thus far, aside from the disagreement on the rule’s scope, the following points have not been contested in this discussion:

    – Adopting this rule will exclude adherents to certain religions from the legal profession.
    – Rejecting this rule will not in any way hinder homosexuals or transgendered people from obtaining the best legal representation available.
    – As outlined in the concerned attorneys’ petition, the rules in their existing form provide ample protection against prejudicial discrimination.

    From this discussion, it seems to me that the best argument in favor of adopting this rule is that it will almost never apply (only rare situations like the bankruptcy scenario). But even in those rare scenarios (which happen to fill our casebooks), what harm is suffered by not adopting the rule? What benefit flows from its adoption?

    I don’t see this proposed rule benefiting anyone, regardless of their sexuality. I do see it punishing attorneys for no other reason than for adhering to religious beliefs that are in opposition to the religious beliefs of those in power.

  24. A) I think the rule has to be read so narrowly that it would virtually never apply. First, the plain language of the rule limits it to “in the course of representing a client.” Second, if it is read more broadly, I don’t see how it wouldn’t be a clear violation of the first amendment on both free speech and establishment clause grounds.

    B) I hate to repeat myself, but you keep bringing up the bankruptcy example listed in the original post. I still don’t see how that example isn’t utter nonsense. Regardless of discrimination on any basis, why would a bankruptcy attorney ever be required to elevate a simple bankruptcy to a constitutional case? There’s an easy, discrimination neutral reason for that to never happen. Challenging a federal law on constitutional grounds is clearly outside the scope of any bankruptcy case. A lawyer may choose to take the 2nd constitutional case, but I don’t see why he would ever be required to so drastically expand the scope of representation just because he is already representing the client in a bankruptcy. I’m sure most bankruptcy lawyers would refuse the constitutional case not because they have any issue with the client, but because it’s simply not their area of practice.

  25. Mat,

    Still, my question is, as to your point A, if you are correct that the rule never applies, why advocate it?

    As to your point B, the concerned attorneys’ petition outlines several other scenarios. For example, an attorney agrees to represent a female client against charges of inappropriate conduct inside a women’s restroom. After accepting the case, the client reveals to the attorney that she is not really a woman, but a man who expresses himself as a woman. The attorney has no religious objection to defending a woman against misconduct in the women’s restroom, but does have a religious objection to defending a man against misconduct in a women’s restroom.

    How can this attorney escape advocating against his religious beliefs? Even if he drops the client because the client “lied” about his sex, the attorney is clearly manifesting a bias based on gender identity. What justifies punishing this attorney? Are the concerned attorneys hypocrites for proposing this example?

    The problem is here is not in finding a specific example we all can agree on. It is in finding a justification for this proposed rule that either (a) never applies or (b) excludes or punishes people of certain religions merely for adhering to their religion. No such justification has been offered.

  26. Defending the innocent is a religious principle I am familiar with. And assuming innocence until guilt is proven is an American legal doctrine that I am familiar with. Is a religious principle that would exonerate or impute malfeasance based on gender ethically defensible in a pluralistic society ruled by secular law?

  27. Two logical or perhaps grammatical errors with that assertion, Tim:
    1. I don’t think anyone is discussing imputing anything based on “gender.” Last I checked, the Christian worldview was not concerned with whether a person was male or female.
    2. It isn’t about imputing malfeasance so much as it is about trying to justify what could be an awkward and unproductive relationship to some. As Cassie pointed out above, if an attorney has a moral objection to a person’s lifestyle, why would a potential client want to work with them anyway? Of what purpose is a rule that forces such a union or penalizes the attorney for ethically wanting to see that they are better represented – by someone else? And then as Nate keeps asking – where is the loss in not having such a change to the rule? Is there any research to show that the GLBT community has been harmed by not being able to find adequate representation as a result of the sincerely held beliefs of some attorneys? I’d be interested in seeing that. Absent any such research, the question is extremely valid: what’s the point, except perhaps to try to harm those who hold a different view?

  28. Well, Tim,
    I was referring to the restroom example where it mattered to Nate about gender. Perhaps this is a case of no harm, no foul… would you argue to also remove race, gender, religion, national origin, disability, age, and socioeconomic status from this same ethical protection?

  29. I can only speak for myself, Tim, but as a black Christian, I can say I would not want to work with an attorney who has an issue with black people or Christians. I wouldn’t want to give him my money, nor do I think he could do a good job working with me on my case.

    Having said that, the clear difference between most of the classes you listed and “gender identity,” is that the rest are scientifically proven to be set at birth and are immutable. Until shown otherwise, I’m fine with the ethical rules not adding any further life choices or opinions to the list.

  30. Direct answer: Absolutely. Such a principle is ethically defensible because the opposite principle requires the attorney to fundamentally change his argument.

    This is the fundamental difference between defending against accusations and advocating legal change I referred to above. In the one case, the attorney simply argues the woman didn’t conduct herself in an inappropriate manner inside the women’s restroom. In the other case, he must argue that the law must be changed such that a man’s willful presence in the women’s restroom is not inappropriate behavior in and of itself.

  31. Mr. Allen: There are two other differences.

    First, there are no laws in America that can realistically be accused of unconstitutionally treating the other classes (race, sex, religion) unfairly.

    Second, there are no religions that take issue with any of America’s laws regulating the other classes. Some religions permit slavery, for example, but none require slavery. Some declare different roles for men and women, but none declare women cannot vote.

    Given these two statements, you will have a hard time finding a plaintiff with article 3 standing to allege injury under the other classes. However, as a pure academic hypothesis – a fictional religion challenging a fictional law – yes, someone could challenge the other categories, and such a fictional attorney should not be compelled to argue such a case.

  32. Tim, that’s simply inaccurate. Socioeconomic status is hardly immutable. Race is as much social construct as it is genetics. We can argue about whether gender is or is not immutable, though I join with Mark Twain….when asked if he believed in “infant baptism,” he replied, “Believe in it?! Hell, I’ve SEEN it!” and I’ve seen gender changes. Religion is definitely mutable; if it weren’t, neither Christianity nor Islam would be missionary religions seeking converts.

    That said, and after reading all these comments closely and thinking about it more seriously, I realize that I am fine with penalizing any lawyer who, in the process of representing a client, manifests bias in ways that prejudice the administration of justice. That even includes the representation of heterosexual Christian male lawyers. If it’s an article of faith that a lawyer should be allowed to manifest bias regarding a client in ways that prejudice the administration of justice, it is not a faith that I know of nor one I can respect to the degree of granting its adherents license to damage the chances of a client’s obtaining justice.

  33. Why must he argue that the law must be changed? If my client commits and confesses to an aggravated assault, am I now required to argue that the law against aggravated assault must be changed?

    To stretch your analogy a bit, what if I take a prostitution case defending the John. In the course of the representation it turns out that not only was the girl 16, but that is exactly why the John sought her out. My case has fundamentally changed. Is my only option really to argue that penalties for child prostitution are unconstitutional?

  34. No Mat, your analogies are inapposite. In the bathroom example, the attorney is arguing that the woman client was actually doing something that is in-line with his religious beliefs. If he wins the argument, the result is in-line with his religious worldview.

    He cannot similarly argue that the man client. If the attorney wins this different argument, he has set precedent that men can willfully enter the women’s restroom.

    That doesn’t apply to your assault or prostitution hypotheticals. The lawyer can win both of those hypotheticals by simply proving his client didn’t do it. He cannot prove the man in the women’s restroom was actually a woman.

  35. Tim, If you will closely re-read my statement, you will note that I said “most of the classes you listed.” I realize that neither religion or socioeconomic status are immutable.

    If you wish to penalize lawyers who have biases you disagree with, (for we all have biases), then that is your choice. I stand with the lawyers at ADF and others who disagree with the continual adding of “choices” that seem to do little more than dilute the genuine protection offered to others under the guise of an apples to apples comparison. It is not.

  36. But he could argue that the man didn’t do it, that nothing happened at all, that it was a different man, that it was an innocent mistake, duress, coercion, or most likely in any criminal case, not make any argument at all except that the prosecution hasn’t met it’s burden. The same arguments that could be made in any other criminal case.

  37. Bingo! You summed it up perfectly: the lawyer could make those arguments in both cases.

    But there are some other arguments you didn’t mention that he could make in the woman case without violating his religious beliefs – arguments he could not make in the man case. Arguments such as, “my client was in the women’s restroom, but my client’s behavior was not inappropriate.”

    Therefore, in order to provide the best arguments, this rule requires the attorney to either violate his religious beliefs or recommend a new attorney and risk punishment for “manifesting bias.”

  38. With all due respect, Dr. Koch, when you say a religion is “not a faith that I know of nor one I can respect,” aren’t you just saying that your God believes X and you won’t tolerate anyone who believes in a God who believes Y?

  39. When reading the proposed rule, I had to ask myself, “What is the point?” Certainly there are professional regulations in place that keep lawyers from acting in ways that are generally “prejudicial to the administration of justice.” Even without this proposed rule, it seems a matter of common sense that a lawyer cannot sabotage his client’s case, even if the lawyer fully disagrees with the client’s lifestyle decision. So what NEW protections are clients getting through updating the Professional Rules of Conduct? I would argue none. Then, why is this rule being promulgated? Perhaps this is more of a political statement. Perhaps the authors of the rule want to take a stand against discrimination. Perhaps the authors of the rule want to lay the foundation for more rules of this nature. Perhaps the authors of the rule want to secretly promote their own social ideology concerning the way society should operate.

    While I do not know why the rule is being promulgated, one things seems rather clear: the Rules of Professional Conduct is not the proper place to promote a political agenda. Since the rule provides no NEW protections, it should be cut.

  40. Actually Ms. Clymer, everyone agrees it kills, and the more medical advances we get, the harder it is to dispute the fine lines of what is or is not “life.” And yes, pharmacists have an ethical code they must adhere so they are considered professionals. Morals simply cannot be taken out of the equation about what life is or is not. Otherwise, what foundation would anyone have to even care to pick a side? it matters.

  41. Accusations of “fear” and “unreasonableness” are conclusory allegations. I don’t believe the letter posed by the ADF attorneys mentioned they fear LGBT. What they do fear, properly, is a mandated moral standard (a stance one way or the other) by forcing attorneys to represent someone they morally disagree with. Even criminal defense attorneys have the choice to pass on the case, I fail to see how this is morally consistent with the standards for attorneys.

  42. Let me see if I understand the hypothetical correctly. An attorney would agree to represent an individual, whom he believes to be a woman, because she has been accused of misconduct in a women’s restroom. The attorney has no knowledge of the allegation itself (that she was really a man) before he agrees to represent her? Is this a realistic hypothetical?

    What if the client has Swyer’s syndrome? Or another member of the vast spectrum of chromosomal and hormonal conditions that makes gender not so black-and-white?

    This rule is not going to control attorneys’ thoughts, people can be hateful, racist, sexist, etc. This rule just holds attorneys, as advocates, officers of the courts, and fiduciaries, to a higher standard when they are doing their job. It’s really not so scary, I promise.

  43. I remember when I woke up and decided to be a homosexual. I looked in the mirror and said, “oh, I can’t wait to be a marginalized citizen! I look forward to the day that I meet my partner and have people tell me that my relationship is not worthy of recognition. It will be great when I lose friends and family members because their religions inform them that they can no longer have anything to do with me. It will be just glorious when I perform comedy in Bardstown, Kentucky and I am chased out of the bar while people yell ‘faggot!’ Oh won’t it be great to nearly have a nervous breakdown and contemplate suicide because I can’t accept who I am? Won’t it be wonderful to be treated like a monster when I, like most heterosexual couples, decide that I want to have children? And won’t it be great when I have to leave my childhood church, because I’m told that I’m unwelcome unless I magically change into a different person? And won’t I love it when I regularly read about young people that couldn’t learn to love and accept themselves as I have, decide to commit suicide? Yes, I think that sounds lovely. From this point on, I will be a homosexual!”

    If you want to make arguments about whether or not this is a good policy, fine. But don’t try to argue that we’ve made “lifestyle choices.” You haven’t the slightest idea what you’re talking about, and it only makes you look foolish.

  44. Hey K,

    Since we have the same name yet are clearly different people with opposing views, would you mind choosing a name that is not already in use? Thank you.

  45. Is it really that bad to agree with some of these stereotypes.
    Not that she could anyway. As soon as a youngster
    meets Brave Frontier Hack they are changed.

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