After kicking the can around for 3 years, the State Bar of Arizona finally submitted a petition to the state supreme court that no one besides Bar insiders was asking for.
The Bar wants to amend the Oath of Admission to the Bar and the Lawyer’s Creed of Professionalism. The petition has been circulated for public comments due back October 28, 2016.
Since rule changes occur mostly under-the-radar without fanfare, revisions to the oath and creed will probably go into effect with few discouraging words.
Why the Arizona Bar felt the need to amend the oath and creed is a good question. The stated reason was a desire “to harmonize” the oath with the Arizona Loyalty Oath of Office and with a supreme court rule. As for the creed, the Bar said the proposed changes “reflect additional areas of emphasis as the result of practical experience since the creed was originally adopted.”
For the record, Arizona’s lawyer creed was adopted May 19, 1989. It’s already been amended twice, including September 19, 2003 and May 20, 2005. This latest petition will make 3 amendments.
I don’t know how many other states have enacted let alone so frequently amended their own lawyer creeds meant ostensibly to legislate professionalism and civility for a stubbornly adversarial profession.
Over 30 years ago such creeds became all the rage. State bars around the country imposed these creeds in a daunting attempt to stem the public’s falling respect for lawyers. You tell me if it’s worked. A 2014 Princeton University study found lawyers continue to rank below nearly every other profession and occupation in trustworthiness.
But whether something works or not is of little import to bureaucrats invested in telling the rest of us how to act and think. Rules and systems change. Initiatives are implemented. Programs are rolled out. But little is done after to quantifiably measure or objectively evaluate whether goals are met or programs succeed. But if feel-good bromides be the music of success, then play on. Nothing tops the self-congratulation of non-achievement.
And something else you can always count on is for bureaucracies to overreach their authority. So ‘aye, there’s the rub’ with this petition. It tinkers, tampers and trespasses on public interests and lawyer rights.
I won’t get into all the objections but highlight the principal ones as follows:
One proposed change to the oath adds “and laws” to “I, (state your name), do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona.”
Article 6 Section 26 – Oath of office of the Arizona Constitution states judges must support the Constitution of the United States and of Arizona — but does not mention “laws.” Arguably, this is because judges sometimes overturn laws and therefore ought not be so proscribed by an Oath of Office. Relatedly, lawyers sometimes challenge certain laws as facially unconstitutional or unconstitutional as-applied. Indeed, in those circumstances lawyers argue such unconstitutional laws should not be obeyed. Consequently, lawyers, too, should not be required to swear an oath to “laws” they don’t believe are constitutional.
The petition also exchanges “unprofessional” conduct for “offensive” conduct in the creed. The proposed new language goes beyond what the court already defines as “unprofessional” conduct in ER 8.4. Misconduct.
This hints at a hidden agenda. It morphs into a brand new mandate ER 8.4’s ethical proscriptions against bias and prejudice that are actually “prejudicial to the administration of justice” and that adversely affect fitness to practice or seriously interfere with the proper and efficient operation of the judicial system. The new requirement instead goes beyond settled rule intent and interpretation. In truth, it’s an entirely new departure intruding on lawyers’ professional autonomy, freedom of speech, and freedom of association. As a consequence, it subjects lawyers to discipline for engaging in conduct that neither adversely affects the attorney’s fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system.
And last, the addition of “and respectful to” to no. 11 of the creed, “I will at all times be candid with, and respectful to, the tribunal” seems to place respect to the tribunal over duty to the client or justice. As a colleague recently wrote to me after citing instances where tribunals were sorely wrong from Buck v. Bell to Dred Scott v. Sandford to Plessy v. Ferguson to Korematsu v. United States, “Lawyers have to not be afraid to criticize the government, judges and prosecutors when they are abusing their powers as well. We cannot fear discipline because we spoke truth to power.”
Absent a prejudicial effect on the administration of justice, you expect lawyers to retain free speech rights even when engaging in professional activities and especially life activities outside the practice of law. But efforts to broaden and censure lawyer speech and conduct when the prohibited speech and conduct do not have a prejudicial effect on the administration of justice threaten those rights. They raise serious First Amendment issues subject to constitutional challenge.
Not to mention that the words “and respectful to” are also void for vagueness since they are undefined. Due process requires that an enactment is void for vagueness if what it prohibits is not clearly defined. Worse yet, these words would operate to chill the exercise of First Amendment freedoms by preempting and even muzzling speech and conduct lest boundaries not clearly marked are crossed.
And even more worrisome is the probability that arbitrary and discriminatory enforcement will follow without explicit standards for those who apply them. As it is, lawyers here already opine the Arizona Bar enforces its ethical rules on an ad hoc and subjective basis. Vague terms like these only serve to compound these opinions. And they heighten attendant apprehensions of continued arbitrary and discriminatory application.