The June 22 edition of the Arizona Capitol Times featured an article titled “Proposal to add ‘gender expression’ as a protected class ignites State Bar battle” that discussed my proposed change in the rules that govern lawyers’ professional conduct.
In the article, a characterization was made by critics that the proposed change is “trying to reverse decades of advancement by women, minorities and homosexuals.” A critic in the article also claimed that the proposed change is motivated by a desire to “[stop] incremental progress by gays to ‘get full acceptance into society’” and that the change goes against “the role of lawyers to be the promoter of rights for the society.” These baseless claims could not be further from the truth.
First, it is worth noting that my proposed change does not affect the actual, binding Rule 8.4(d) at all. Rather, it focuses on one of the advisory comments, specifically Comment 3, that is meant to provide guidance to attorneys and to the State Bar’s disciplinary panel on what it means to “engage in conduct that is prejudicial to the administration of justice.”
Second, because the advisory comment should be just that, “advisory,” my proposed change clarifies what words and conduct are actually prohibited by the rule. My proposal removes the vague definition that prohibits conduct that “manifests…bias or prejudice” and replaces it with a definition that prohibits “conduct that the lawyer knows or should have known invidiously discriminates against, threatens, harasses, intimidates, or defames.” This clarifies what really is “conduct that is prejudicial to the administration of justice” and provides lawyers with a clear, rather than vague and unclear, advisory comment.
Finally, my proposed change removes the list of specially protected groups, and in doing so, makes Comment 3 inclusive rather than exclusive. Despite what some claim, this approach epitomizes the extension of democratic principles to the whole society, rather than select classes. Moreover, it advances the true role of lawyers: to be the promoter of rights for all of society.
Read the proposed rule change for yourself.
— Cathi Herrod is president of the Center for Arizona Policy.