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‘Gender expression’ proposal ignites State Bar battle

Cathi Herrod, president of the Center for Arizona Policy. (file photo)

Most changes to rules governing lawyers don’t stir much outrage, but a proposal by the leader of a social conservative advocacy group to delete references to historically protected classes has critics alleging she is trying to reverse decades of advancement by women, minorities and homosexuals.

The proposal comes a year after socially conservative lawyers blocked a rule change that would have given protection to “gender expression,” a term for people whose characteristics and behavior is more consistent with the opposite sex.

“They’re trying to go backwards, pull it back a step and you have to do that incrementally as well,” said attorney Diane Post, a self-professed liberal who filed written opposition to this year’s proposal.

Cathi Herrod, executive director of the Center for Arizona Policy, said ethical rules shouldn’t have protected classes not designated by the Legislature. Instead of listing classes of people who can’t be discriminated against, her proposed rule change would make it a violation to arbitrarily discriminate against an individual in a way that will create an injustice.

Herrod said her intent is to clarify what the ethical rule says about discrimination so lawyers are on notice of what constitutes a violation. The current rule prohibits discrimination on the basis of sex, religion, national origin, disability, age, sexual orientation, gender identity or socioeconomic status.

“My proposal makes the (rule) regarding discrimination more inclusive,” she said.

Her proposal sprang from an enduring debate about the rule that began last year when the State Bar of Arizona, at the urging of its Sexual Orientation and Gender Identity Committee, proposed adding “gender expression” to the list of protected classes. That was met with opposition from conservative lawyers and eventually scrapped.

Herrod said her proposal isn’t anti-gay or part of a strategy to curtail successes of the gay-rights lobby.

Post, who was on a State Bar task force this year whose purpose was to develop a compromise on the rule, said much of the discussion from conservatives on the panel was about stopping incremental progress by gays “to get full acceptance into society.” That is Herrod’s true motivation, she said.

Herrod’s proposal has spurred a passionate response from ethnic lawyer groups and individual lawyers and activists, some of whom called her bigoted, hateful and naïve in their written comments to the Supreme Court, which will decide by September whether to change the rule.

Post wrote that Herrod has a “narrow and niggardly view of the law and a lawyer’s duty.” Post said she deliberately misused the word “niggardly,” which dictionaries define as miserly or stingy with money, in the sentence to make a point that Herrod is “saying something negative about black people” by trying to eliminate protected classes.

Herrod said her petition speaks for itself.

“Meritless-based attacks are part of this process and I don’t respond to name calling,” she said.

Most rule change proposals the Supreme Court considers, whether they are ethical rules for lawyers or rules of court procedure, are technical in nature and rarely stir passion, much less draw the attention of lawyers.

“It’s more than simply a technical change,” Post said. “(The current rule) is an example of the extension or the attempted extension of the democratic principles to a larger society, to the whole society, and some people don’t believe those principles should be extended to the whole society.”

The opposition groups not only want to keep the list of protected classes, but add to it.

Gaetano Testini, president of Los Abogados Hispanic Bar Association, said trying to make an all-inclusive rule without identifying groups that have historically been discriminated against protects no one and would be akin to eliminating the criminal code and replacing it with a simple principle of “just be good to everybody and don’t hurt anybody.”

Testini said the listing also has historical significance, because it came from the efforts of the civil rights movement and there is abundant case law to justify each class.

“To ignore that at the State Bar level and to have it approved by the Supreme Court of the state would fly in the face of jurisprudence,” he said.

The current rule is written in two parts. There is the rule itself, which states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” There is also an accompanying advisory comment, which includes the list of protected classes.

State Bar spokesman Rick DeBruhl said the advisory comment provides guidance for a disciplinary panel to make a decision on a lawyer’s conduct.

Herrod’s proposal isn’t the first attempt at changing the rule.

The current advisory comment was adopted in 2003. In 2010, the State Bar asked the Supreme Court to elevate the advisory comment to a rule and add “gender expression” to the list of protected classes.

The proposal was moving through the process without fanfare until it caught the eye of Maricopa County Attorney Bill Montgomery and the Alliance Defense Fund, a social conservative legal group, both of whom filed objections. Roughly 70 individual attorneys signed on to the Alliance Defense Fund’s objection.

“Philosophically, our rules regarding professional conduct are supposed to be rules that give guidance to attorneys on what they may or may not do in the course of practicing law, and they should not be vehicles for political expression or political arguments,” Montgomery said.

The proposal was too subjective and left too much to interpretation and argument in determining misconduct, he said.

The State Bar eventually scrapped the proposal in December 2011. In January, Herrod filed her petition. The State Bar formed a 19-member task force, which included Montgomery, Post, Alliance Defense Fund attorney Gary McCaleb, Testini and others, to decide what position it should take on Herrod’s petition.

The task force met three times in February and March, but couldn’t come to a consensus.

The State Bar has asked the Supreme Court to reject Herrod’s petition so it could study the issue further and bring it back in 2013.

McCaleb said there has been years of study and discussion, and he hasn’t seen any credible evidence that lawyers in Arizona are discriminating against clients.

DeBruhl said no one at the State Bar could remember any complaint involving bias or prejudice against a lawyer.

Post said the issue is a fundamental difference over the role of lawyers in society.

“Is the role of lawyers to be the promoter of rights for the society, or is lawyering just another job?” Post said. “Some of us, myself included, believe that lawyers have a higher calling. We are the people to uphold justice, to try to bring justice to reality.”

Montgomery said there’s no room in the practice of law for segmenting society and the politics of division.

“Let’s quit coming up with additional definitions and descriptions of people in our community to add to this list and instead let’s just get down to simple basics and therefore we all have an equal expectation to be treated with dignity and respect,” he said.


Following are Ethical Rule 8.4(d) of the Arizona Rules of the Supreme Court and a proposed change submitted by Cathi Herrod of the Center for Arizona Policy.

Current Rule:

It is unprofessional conduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice; 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, gender identity or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice.

Herrod Proposal:

It is unprofessional conduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice; A lawyer may violate this Rule when, in the course of representing a client, (a) the lawyer uses words or engages in conduct that the lawyer knows or should have known invidiously discriminates against, threatens, harasses, intimidates, or defames an individual and (b) those words or that conduct creates a substantial likelihood of material prejudice to the administration of justice by undermining the impartiality of the judicial system.

To read Herrod’s petition and responses to it, go to: http://www.azcourts.gov/LinkClick.aspx?fileticket=uYZT0WnIn6U%3d&tabid=949


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