Tuesday, December 30, 2008

Arizona State Bar Association revision of the oath for attorneys

Caught up in the propaganda wave generated by the opponents of Proposition 102 in Arizona, the Marriage Amendment, there have been a number of inflammatory and inaccurate news stories concerning action to be taken by the Arizona State Bar Association.

Although the news accounts concerning the Arizona State Bar Association's action to include a reference to sexual orientation in the oaths administered to all new entrants licensed to practice law in Arizona only recently made the national news, the reference to a concern with prejudice concerning sexual orientation was long ago included in the Arizona Rules of Professional Responsibility. The provision included with Ethical Rule 8.4 was passed by the Arizona Supreme Court effective back on December 1, 2002. The ER 8.4 in full states:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Code of Judicial Conduct or other law.

(g) file a notice of change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, for an improper purpose, such as obtaining a trial delay or other circumstances enumerated in Rule 10.2(b).

The only reference to sexual orientation is found in the related comment. The comment in question states, in part:
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 or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. This does not preclude legitimate advocacy when race, sex, religion, national original, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding. A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.
According to the Web site of the Arizona State Bar Association, there are no specific ethical opinions issued by the State Bar with reference to that particular provision. This means that since 2002, no one has requested a formal opinion from the State Bar concerning this particular provision. There was some limited discussion in the media back in 2002. See Arizona Supreme Court Requires Lawyers to be GLBT Friendly dated July 4, 2002.

The current controversy arose as a result of a request by the Supreme Court of Arizona to the State Bar to review and recommend revisions to the Oath of Office for State Bar members reported in the August 22, 2008 minutes of the meeting of the State Bar Board of Governors. Those minutes state:

Ed Novak introduced a proposed revision to the Oath of Office for State Bar members that he wrote and that the members of Scope & Ops have worked on. Amelia Craig Cramer circulated a redlined version showing changes from the existing Oath to the proposed revision. President Novak stated that at the Court’s last meeting it was suggested that the Oath be reviewed and possibly updated. The first draft was in the Board materials and members of the Board were urged to review and consider it,as well as the slightly-revised redlined version. Further discussion of the proposal will continue at the September meeting of the Board. When the proposal is more defined, member’s comments and suggestions will be sought.

In the September 26, 2008 Minutes of the Board of Governors it stated:

President Novak stated a recommendation was received to review and update the Oath. Amelia Craig Cramer circulated a redlined version showing changes from the existing Oath to the proposed revision. The Board is asked to review the Oath and direct any comment to President Novak or Amelia Craig Cramer. Further discussion was tabled to the next meeting. The proposed changes will be voted on at the November Board meeting, and members will be able to comment prior to the Board submitting the proposed changes to the Supreme Court.

The subject was not discussed in the October meeting. Minutes for the November meeting are yet to be published on line.

Apparently, the State Bar gave its recommendations and in response, the Arizona legal community began its response to the recommended wording of the change. See December 12, 2008 letter to Edward F. Novak, Arizona State Bar President. This issue began to get greater coverage as a result of blog stories after the letter was made public. The story began to be generally repeated in the pro-gay blogs. It appears that the story has yet to hit the general media.

The status of the proposal is presently unknown. There are apparently no official statements from the State Bar. We will have to wait for further developments. However, I am aware of several attorneys who are planning to write opposing the change to the Oath of Admission.

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