With that, I segue to the topic of belief and prejudice but in a context different from that of the misanthropic comedian who also famously said he was “free of all prejudices” – – – “I hate every one equally.”
Earlier this month, I was assessing the pros and cons of an Arizona State Bar proposal that further particularizes the prohibitions against prejudice by lawyers. As it turns out, the subject of religious belief has also found itself interspersed into the assessment by opponents of the proposed amendment to AZ-ER 8.4 of the lawyer canons of professional conduct.
The ‘nanny bar.‘
I often take an exception to the Arizona Bar’s habitually meddlesome penchant for finding solutions in need of problems, e.g., “Are virtual law offices ethically impermissible?” My default inclination is to chalk up any rules amendments as just more unwelcome nanny bar forays.
The change this time, which is designated as R-10-0031, is a petition to“make bias against certain classifications of people professional misconduct, and would add the classification of “gender identity or expression” to the enumerated classifications.” See Attachment: 161513235958.pdf
ER 8.4 deals with “Misconduct.” It is a general ‘catch-all’ rule that states it is professional misconduct for a lawyer to:
The proposed change seeks to formalize existing Comment  to ER 8.4, which reads, “A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.”
Here’s the proposed amended language: “(e) knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identify 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.”
Attack of the First Amendment defenders.
The objections emanate from concerns that the proposed lawyer ethics amendment will violate a lawyer’s religious liberty by inflicting “harm. . . on professionals who hold religious convictions about sexual morality” and infringing on “the free-exercise rights of religiously motivated attorneys . . . by requiring them to advocate views and legal positions that conflict with their sincerely held religious beliefs.” See Attachment: 1715332674471.pdf
And yet, that argument’s hardly dispositive. History is replete with examples of both sinfulness and righteousness propounded in the name of sincerely held religious beliefs.
More than a decade ago, a report submitted to the Arizona State Bar Board of Governors from the Lesbian and Gay Taskforce revealed that 77% of judges and attorneys in Arizona had heard disparaging remarks against gays and lesbians. 47% had heard them in public areas of the courthouse. Additionally, 30% of Arizona judges and attorneys believed that gays and lesbians were discriminated against in the legal profession. See “Discovering and Addressing Sexual Orientation Bias in Arizona’s Legal System.”
More recently, to the dismay of the enemies of political correctness, 200 Arizona attorneys signed a letter from Lambda Legal in support of adding non-discrimination language to the Arizona Attorney Oath.
But this is the land of Arizona SB 1070, of animus for immigrants without papers (i.e., “those damn illegals”), and of a dust storm assisted enlightenment. There’s need aplenty to formalize into the rules, prohibitions against bias. See, for example, “Arizona Jim Crow – The History of Jim Crow” and“As MLK memorial is dedicated, Arizonans recall fight for holiday” and “Finding an open table while Latinos leave Arizona” and Nashville court awards damages to shackled pregnant woman but in Arizona, it’s the ‘same-old, same-old.’
A deplorable discrimination case, for-instance, can also be found at In re. Goodfarb, 880 P.2d 620, 179 Ariz. 400 (Ariz., 1994). In that case, it took the Commission on Judicial Conduct more than 4 years after the underlying misconduct to belatedly discipline a Maricopa County Superior Court Judge for using the words “fucking niggers.” (1)
So notwithstanding the concerns of “religiously motivated lawyers,” why isn’t a proscription against bias based on race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status a good thing?
Last, this blog is read by both religious believers and atheists. But despite my own religious bona fides, I end with a provocative clip from a UK television show. Believers in Heaven will recoil in offense at Kate Smurthwaite’s snarky syllogistic premise. But the clip nevertheless underscores the problem with objectified intolerance.
(1) Prior to a post-conviction evidentiary hearing in State v. Joseph, CR 87-08901, counsel for Joseph argued that the black man’s conviction should be vacated because the State used, or failed to use, peremptory strikes on the basis of race, in violation of Batson v. Kentucky. In chambers and in front of counsel, the jurist incredibly uttered the obscenely offensive racial epithet. He later explained it was all “in jest.”
And forgetting that poor judgment can also conflate into actual bias, in a jaw-dropping mitigating factor, “the Commission found that Judge Goodfarb’s use of racist and profane language was just that, and did not interfere with his ability to fairly decide cases.” 179 Ariz. at 401, 880 P.2d at 621.
The Goodfarb case is also cited in Harvard law professor-author Randall Kennedy‘s book, “Nigger: the strange career of a troublesome word.” (I am currently reading Professor Kennedy’s latest book, “The Persistence of the Color Line.”)