Sunday, July 10, 2011

Attorney regulator wants rules spelled out

he organization that regulates lawyer conduct is making another bid to spell out clearly the obligation of attorneys not to discriminate.

The State Bar of Arizona has asked the Arizona Supreme Court to spell out in its rules that it is professional misconduct for an attorney to "knowingly manifest bias or prejudice" in representing a client based on a host of factors. These range from age, race, gender and religion to socioeconomic status, sexual orientation or gender identity or expression.

That language was crafted by the Bar's Committee on Sexual Orientation and Gender Identity. Attorney Claudia Work said members felt it was important to spell out the obligation in the rules.

But Work said her committee is trying to avoid the pitfalls that befell a similar proposal about the oath lawyers have to take, one that went down in flames amid concerns about the individual rights of lawyers to refuse to represent someone. In fact, she said, it was that failed effort which led to this latest push.

That oath, required of all lawyers, says they "will not permit considerations of gender, race, age, nationality, disability or social standing to influence my duty of care." In 2008, however, the Bar sought to add sexual orientation to that list.

That provokes a firestorm of protest from lawyers who said they could be forced to represent clients whose views they find morally objectionable. There were particular concerns that religious attorneys might be forced to take up the legal cause of gays.

Work said the foes were wrong in their assumption.

"Lawyers aren't buses," she said. "You don't have to take every client that comes along."

Instead, Work said, the idea was to say that once an attorney takes on a client, an attorney cannot torpedo the case based on feelings about that person's views or lifestyle.

"It seems logical," she said. "But it does not appear that a lot of members of the Bar understood that concept."

Putting the prohibition against discrimination against clients directly into the ethical rules governing lawyer conduct, Work said, should spell that out clearly.

She acknowledged that most of the language she wants already exists, not in the rules themselves but in the comments to the rules governing what constitutes attorney misconduct.

These comments essentially are explanations of what the rules mean. And Work said that the comments can be used as a basis to charge an attorney with ethical violations.

But she said that is not enough.

"To a certain extent, some attorneys view the comments to the ethical rules as just suggestions or fine print," Work said. She said including this in the rules themselves would underline that lawyers already have that obligation "and we're not going to make you look for them in the footnotes."

But there is one change that is getting attention.

The comments say lawyers should not discriminate based on someone's "gender identity." The proposal would expand that to say "gender identity or expression."

That raised concerns by the Maricopa County Attorney's Office. Mark Faull, the chief deputy, said he and his boss, Bill Montgomery, are concerned about adding gender expression to what would constitute a basis for a discrimination complaint, saying it create an "amorphous category."

"The Bar does not provide an explanation why this additional language is necessary or desirable," Faull wrote. "The term 'gender expression' is vague and subject to interpretations that might include deviant sexual behavior."

Work said that's not the case. But she said members of her committee felt it was necessary to add that language because it does not fall within other categories, like sexual orientation.

"Think about the little boy on the playground who wants to play football in a pink uniform," she said.

"He's probably heterosexual but he likes some more feminine things," Work continued. " That's 'gender expression,' a boy expressing himself in a non-traditional manner."

Similarly, she said a woman who dresses in what would be considered a "mannish manner," including short hair, a masculine-cut suit, would be someone expressing gender that was different than their physical gender or even sexual orientation.

The proposal is now before the Arizona Supreme Court. The justices have given no indication when they will decide whether to approve the change.

By Howard Fischer, Capitol Media Services


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