By Dianne Post, Central Arizona NLG Facilitator
The State Bar of Arizona has twice tried to change its ethical rule 8.4 to include non-discrimination against women, LGBTQ people, socio-economic status, gender identity, etc. Some years ago, the Bar submitted this suggested change to the Supreme Court. The pushback was immediate and vicious. Lawyers rose up to scream about the loss of their rights to discriminate against any group they choose. The clamor was so loud the Bar withdrew their suggestion.
A few years later, the Bar made another attempt. This time, they created a committee and put me on it as a NLG representative. We had representatives from every minority bar association (Hispanic, Black, Asian, LGBT, women), representatives from the religious lawyers including Alliance Defending Freedom (the pro-religion firm) and Thomas Moore (representing Catholics), and representatives from the county attorney’s office. The meetings were long and bitter with the women and people of color arrayed against the religious fundamentalists and law and order crowd. The vote on whether to include the non-discrimination language in the Rule was tied at 8-8 until the chairperson sided with us.
A few years later, I noticed that the Bar didn’t put the language into the Rule, but rather only included it in the comment section. So the entire process was a sham.
In January 2017, I read an article about the new ABA model ethical rule. I decided to try again and contacted every minority bar association to get support. None would support me. Not one. Shell-shocked, I decided to file it on behalf of the Central AZ NLG, which I did in February 2017. Unfortunately, I had missed the 2017 deadline so it was put off until 2018.
In January 2018, the Supreme Court posted their rules forum and invited comments before May 21. I noticed sometime in April that they had neglected to put my petition up on the website for comment. I debated whether to say nothing so they would be forced to approve it because they had not posted it or to point out the error. I decided that if I said nothing it could possibly be delayed until 2019, so I alerted them.
I was hoping that this error had perhaps ensured that there would be no comments and thus the rule would be adopted. No such luck. On May 3, the comments started pouring in. Negative comments came from the Christian Legal Society, the First Amendment Legal Association, two professors, the National Lawyer’s Association, the National Legal Foundation and Congressional Prayer Caucus, the Goldwater Institute, the very same Maricopa county attorney who had been on the earlier committee, and the Arizona attorney general as well as individual attorneys. All wrote about the intrusion on their First Amendment right to talk about women and people of color and their religious right to discriminate against those they didn’t like.
In spite of intense efforts, I got only five supporters: Lambda Legal, Los Abogados, and three well-respected attorneys—a former bar president, a former bar ethics counsel, and a former winner of a prestigious legal award. I was then able to file a reply after the submissions ended. I relied on the just-released federal judiciary study on sexual harassment and the Supreme Court ruling from Masterpiece Cake. The refusal of most minority bars to support the petition remains a mystery. The Supreme Court will consider the rule changes in August 2018. Third time’s a charm? ■