Thursday, January 1, 2009

Attorney representation in Arizona and the issue of sexual orientation

With the coming of the new year, I will mark my 34th year of practicing law in Arizona. Considering the recent controversy over the possible adoption of a reference to sexual orientation as part of the Oath of Office for admission to the State Bar of Arizona, I can truthfully say that in all of my years of practice I cannot remember ever having the sexual orientation of a client be a factor or even a concern as to whether I represented that individual or not. In fact, I have never made a decision to represent a client or to not represent a client based on a client's inclusion in a particular category. My decision to represent a client is based first and foremost on the needs of the client and as to whether or not my particular practice, skill and or expertise can serve those needs. Quite frankly, in most commercial situations, representation is also based on the ability and willingness of clients to pay for legal services. Law is still a business and attorneys have to make a living.

Even though payment is a factor in choosing to represent or not, it is still only one factor. I have represented hundreds of clients who could not pay for my services. But my choice to represent these clients is mine and I would resent any, including the State Bar of Arizona, who attempted to dictate who I represented. This would be particularly true if I disagreed with the merits of the legal argument being advanced. I would simply refuse to represent anyone who did not have a meritorious claim, regardless of their ethnic, social, religious or sexual orientation. During my years of practice I have represented thousands of clients, many of whom were not of my ethnic background, country of origin, religious belief, sexual orientation or whatever. Just because they were not people I would associate with on a personal level never determined how or why I took a particular case.

In expanding on that idea, I can give a partial list of the types of people I have represented: illegal aliens, Blacks, Whites, Asians, Latin Americans, Gays, Straights, Catholics, Protestants, Jews, Native Americans, street people, millionaires, major corporations, individuals, associations, partnerships, in short, every conceivable combination of clients imaginable and many you probably would not like to imagine. Not one time in my career has a decision to represent a client been made on the basis of the category of the person.

This is the main reason why I would resent and resist the inclusion of additional categories of individuals or groups in an Oath of Admission. Is the list to be inclusive or exclusive? If the type of person coming to me is not listed by the Oath, does that mean I can discriminate based on that category? When does the listing of categories end? But from a more practical side, how do I determine that someone belongs to the suspect category in the first place? If a Black African American, Asian American or a Native American comes to me for representation, I might be able to determine his or her race. But if someone comes to me with a certain sexual orientation, how am I supposed to know this fact? Because the State Bar of Arizona puts a provision in the Oath of Office, does this now mean that I must ask my potential clients concerning their sexual orientation so that I can be sure that should the subject come up later in some context, that I will not discriminate against them? What if someone decides to change their sexual orientation after they have already become a client? Does that mean I have to conduct periodic interviews with my clients to determine if they are still Straight or whatever, just in case?

When Gays are seeking legal advice should they walk into the attorney's office and announce that they are Gay and ask if the attorney if that matters to the attorney or his staff? I do not recall ever having discussed the civil rights classification of any of my clients with anyone, would I now have to do so in order to assure myself that my staff was not somehow discriminating? Let's suppose that I have represented a client for a couple of years and we get into a dispute over billing charges, am I now going to be faced with an accusation that my billing practices are discriminatory when the client suddenly announces to me that he or she is Gay and that is the reason for my overcharges? In the vernacular of the day, give me a break.

This entire issue changes if the person seeking legal representation is asserting a claim based on discrimination in a particular category. For example, if an undocumented alien comes to me for help with immigration matters, what if I decline to represent the client by saying I don't represent illegal aliens? What if I don't happen to take discrimination cases at all? Would I be forced to take a case representing a Gay rights advocate in a discrimination matter when I have neither the background nor the expertise to do so? Why have a list of categories at all? What is the purpose to be served? Ethical Rule 1.1 of the Supreme Court of the State of Arizona (ER) says, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." First and foremost attorneys must have the legal skill to represent their clients. The Comments to ER 1.1 indicate that a client should not represent anyone unless the attorney has the skill to do so or can acquire the skill through necessary study. But if an attorney cannot give the client adequate representation, they should decline to represent the client.

Fundamentally, as an attorney, I can refuse to represent anyone. In fact, I can resign from the practice of law and refuse to be a lawyer. I can also die anytime. (There has been some discussion about the personal liability of an attorney after his or her death, but I could never believe that the discussion was really serious). But once I undertake representation of a client, I can be penalized, sometimes severely, for failing to adequately represent that client. How does taking an Oath upon admission to the practice change that situation? I can also terminate representation at any time, for any reason. I may suffer the consequences if my termination is for the wrong reason, but, for example, if I suffer a heart attack and I am dying in the hospital, I can certainly send my clients to other attorneys for representation.

In all the discussion, so far, about the adoption of a particular category of interest into the Oath of Admission, there has been little public discussion of the need to add sexual orientation at all. Where are the examples of discrimination? From the amount of litigation going on in California over Proposition 108, it doesn't seem to me that the Gay community has any difficulty in obtaining legal advice and representation. So why is this now an issue, especially right after a very contentious election in which the issue was a major part of the campaign?

It appears to me that the issue before the Arizona State Bar Association, is a back-door attempt to begin to establish legal precedent. Not for the purpose of enhancing the practice of law, but for entirely other legal and legislative motives. It is a blatant move to influence the legal process into giving not just equal rights but a preferential standing to Gays under the law. Please refer to Self Evident Truths for a well written discussion of the difference between inalienable rights and Constitutional rights. Since this move by the Arizona State Bar Association comes at this time, during an ongoing national debate, it can only be seen as an attempt to politicize the State Bar. For this reason alone the suggested changes are objectionable. I am therefore specifically and categorically opposed to the addition of the language as presently proposed and as reported in the media.


  1. Great ideas in this one James. I agree that this looks like an attempt for preferential standing. This is your best article yet.

  2. "But from a more practical side, how do I determine that someone belongs to the suspect category in the first place? If a Black African American, Asian American or a Native American comes to me for representation, I might be able to determine his or her race. But if someone comes to me with a certain sexual orientation, how am I supposed to know this fact?"

    This is such a valid point. Must you first discriminate against them by asking their sexual orientation in order to be sure not to discriminate against them in the future?

    Thank you so much for writing this. Your experience as a veteran Arizona attorney is invaluable in this discussion.