For the reasons stated in Christian Legal Society's comment letter, in the accompanying attachment, Christian Legal Society respectfully asks this Court to reject ABA Model Rule 8.4(g) and deny Petition R-17-0032.

Christian Legal Society
8001 Braddock Road, Suite 302
Springfield, Virginia 22151
(703) 894-1087
[email protected]
Kimberlee Wood Colby's D.C. Bar No. 358024

I request that the Court deny Petition R-17-0032 and that it also reject ABA Model Rule 8.4(g) for the reason that such rule would unreasonably and unnecessarily restrict the 1st amendment rights of lawyers.

Mark Schmitt
1221 E. Osborn Rd Suite 105
Phoenix, AZ 85014
[email protected]
#5502

John J. Bouma (SB#001358)
602-382-6216
Andrew F. Halaby (SB#017251
602-382-6277
Lindsay L. Short (SB#034125)
602-382-6419
Snell & Wilmer L.L.P.
One Arizona Center, 19th Floor
Phoenix, AZ 85004
[email protected]
[email protected]
[email protected]

While the objectives pursued by the Proposed Rule's proponents may be laudable, reconciling them with the practicalities of the legal profession may be elusive. Unfortunately, there are many details and definitions that have not been fleshed out that would have a significant bearing on its application.

It is very important is to define who are the people under the Propose Rule's protection, exactly how they are to be protected, and how attorneys must be protected. Let us consider the mundane hypothetical of an attorney representing a landlord who seeks to evict a non-paying tenant. The tenant could argue that the landlord and/or attorney are discriminating against her on socioeconomic reasons because she is poor and unable to pay her rent. Should attorneys not represent landlords? Should attorneys refuse to evict poor tenants? Should the tenant's attorney report the landlord's attorney to the Bar? There are many other issues and concerns just for this simple hypothetical, much less more complicated fact patterns.

There is a great concern that litigants and their attorneys may use this Rule as part of their arsenal of weapons against their opponents and opposing counsel. Also, if clients see that their attorneys are afraid to represent them, they may lose confidence in Arizona's judicial system as a means of peaceful resolution of conflicts.

Without all of these details, an informed decision on the Proposed Rule cannot be made and the Petition should be denied.

David Marhoffer
Arizona Bar No. 015894
4381 North 75th Street, Suite 201
Scottsdale, Arizona 85251
Phone: (480) 609-9701
e-mail: [email protected]

Others have explained that this proposed rule change will violate attorneys' First Amendment Rights. I urge the Court to reject this rule change. If the Court does adopt this rule change, I urge the Court to protect attorneys' deeply held convictions of conscience. Otherwise, this rule change could require an attorney to advocate for causes morally repugnant to the attorney.

Daniel Shumway
520-432-1639
400 Arizona St, Bisbee, Arizona, 85603-1504

I attach, in Word and PDF form, a letter opposing the adoption of the proposed amendments.

Eugene Volokh
Professor of Law
UCLA School of Law
[email protected]

I urge the Court to deny the proposed change R-17-0032 Rule 8.4, Rule 42, Ethics Rules. I believe the proposal is overbroad and would impair religious liberty and free speech rights.

Josh Smith
PO Box 1180
Page, AZ 86040
928-645-4256
[email protected]
Bar No. 033014

I urge the Court to deny Petition R-17-0032 and reject ABA Model Rule 8.4(g) for the reasons stated in my letter to the editor published in the March 2017 edition of the Arizona Attorney set forth again below:

Editor:

“What should ye do then, should ye suppress all this flowery crop of knowledge and new light sprung up and yet springing daily in this city? Should ye set an oligarchy of twenty engrossers over it, to bring a famine upon our minds again, when we shall know nothing but what is measured to us by their bushel? …Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” John Milton

John Milton’s twenty engrossers are at it again. This time they’re the 589 members of the ABA’s policy-making House of Delegates. And two Ethics Counsel of the State Bar of Arizona.

In January’s Arizona Attorney, after pages of analysis, Ethics Counsel matter-of-factly advise us that a “racist and sexist joke about a member of the U.S. women’s national soccer team” told by a partner in a law firm at a firm-sponsored dinner party would “clearly be prohibited” by new Section 8.4(g) of the ABA’s Model Rules of Professional Conduct. That is to say, if Section 8.4(g) of the Model Rules were the law in Arizona (which, thankfully, it is not…yet), you or I could be subject to complaint, hearing, discipline and possible disbarment… for telling a joke.

To refresh your recollection, the new Model Rule makes it professional misconduct for a lawyer “to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

The hypothetical offered by Ethics Counsel has a law firm associate (whom you, the reader, mentor) attending the aforementioned dinner party. After the joke is told, awkward silence ensues, the moment passes, and the dinner concludes without incident, except that the associate is DEEPLY OFFENDED [emphasis added]. The associate, as your mentee, wants your opinion as to whether the partner’s conduct is unethical under the Model Rule.

I submit that Ethics Counsel’s conclusion that it clearly is, is clear as mud.

Since the Model Rule proscribes only “conduct,” it is fair to ask if speech is even covered. Comment 3 to the Model Rule answers that question, uncorking the spectacular euphemism “verbal… conduct.” We are all familiar with Supreme Court cases holding that conduct (e.g., flag burning) is speech in order to gain the protection of the First Amendment. Here, drafters of the Model Rule have perversely concocted “verbal… conduct” in an apparent attempt to avoid the protection of the First Amendment. (It should be noted that the specious turn of phrase actually used in Comment 3 is “verbal or physical conduct,” obscuring all the more the sinister ultimate objective of suppressing free speech.)

The tenuousness of this ruse is exposed by merely substituting “speech” for “verbal… conduct” in the text of Comment 3: “…discrimination includes harmful speech… that manifests bias or prejudice towards others. Harassment includes… derogatory or demeaning speech.” This is just another attempt by end-around to punish “hate speech.” But “hate speech” (as commonly understood), last I checked, is still eminently protected by the First Amendment, as are lawyers from attempts by government to limit their speech via bar rules. See Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 469 (1988)

What a joke. What a joke it must be. Let’s hear the joke. I challenge Ethics Counsel, for our compleat edification, to tell us all a joke that Ethics Counsel considers so odious as to warrant bar discipline under the Model Rule. And then tell us who decides what constitutes a racist or sexist joke, or racist and sexist (presumably twice as reprehensible). All hearers? A majority by show of hands? The listener with the most delicate sensibilities? A judge who tells us “I know it when I hear it”? Are listener(s) the victim(s)? (Who else? Humankind? Womankind? Soccerkind? (the WNBA?)) To complain, must the listener(s) be the same race and gender as the soccer player (who is presumably the butt of the joke) - otherwise, is there standing? What if the listener is only mildly offended rather than deeply offended (or more likely (excuse my cynicism) feigning deep offense in order to sanctimoniously virtue-signal by punishing others for bad taste or thinking out loud)? What if the partner telling the joke is the same race and gender as the soccer player? What if the joke’s butt is instead a male, white, Christian chess player? What if the joke is an adept double entendre that is merely misconstrued? What if instead of awkward silence, a suppressed chuckle or a hearty guffaw is heard? Is mirth a defense?

The enduring beauty of the First Amendment is that none of this nonsense matters. A mere joke, howsoever heinous, is protected speech in the United States of America. And a lawyer’s free speech should be no less protected than that of any other citizen. Why didn’t this niggling detail cross the minds of the Delegates, or enter into Ethics Counsel’s calculus?

And what about harm? Where is the harm? On pain of bar discipline and possible disbarment shouldn’t the harm be severe, pervasive, lasting, objectively damaging harm? Harm prejudicial to the administration of justice? What have we here? Deep offense? That’s it? What we might call in today’s vernacular “snowflake hurt”? Snowflake hurt is no harm at all, or nominal harm at most, and is merely the acceptable consequence of the robust verbal rough and tumble that accompanies our revered foundational principle of free speech. Snowflake hurt, which must be endured by each of us willingly if not cheerfully, daily, is part and parcel of the free society we enjoy as Americans.

My advice to the associate? #chilloutbro (I try to speak their language.) Find a safe space and wait quietly until the sensation of deep offense completely subsides. If it happens within a reasonable time, congratulations, success in the legal profession is yet thinkable. And it’ll get easier with practice. But if it does not go away, or takes inordinately long, consider a move to China or North Korea, where “the birds have ears and the bees have eyes,” and even family members routinely rat each other out to the thought police. See Life and Death in Shanghai by Nien Cheng, or In Order To Live by Yeonmi Park.

John Milton ran afoul of government censors in 1644 and chose at considerable personal risk to directly challenge his masters in a speech before Parliament, quoted in part above. Now nearly 400 years later, nothing has changed. Powerful lawyers whose core function is to protect your rights meet on weekends in vacation destinations scheming to take them away. And minions across the land back them up. When Section 8.4(g) of the Model Rules comes to a theater near you, as it inevitably will, resist it. And if it is adopted in Arizona, as it full well may someday be, defy it. Let John Milton’s fine example be your guide.

Very truly yours,
Stephen W. Baum
Arizona State Bar No. 005381
P.O. Box 44678
Phoenix, Arizona 85064
602-265-3350
[email protected]

P.S. I wonder if Ethics Counsel would opine that this very communication, which is arguably “derogatory or demeaning” to, or “manifests bias” toward, Ethics Counsel, would “clearly be prohibited” by the Model Rule….

I request that the Court deny Petition R-17-0032 and that it also reject ABA Model Rule 8.4(g) for the reasons nicely set forth in the previous replies, including (i) that such rule would unreasonably and unnecessarily restrict the 1st amendment rights of lawyers and (ii) that such rule uses terms that are not defined and therefore renders the rule ambiguous.


Jay M. Allen, #13734
Robinson & Allen PLC
480-964-1421
48 N. Macdonald
Mesa, Arizona 85201

On behalf of the First Amendment Lawyers Association, I attach, in Word and PDF format, a comment opposing the adoption of the proposed amendments. I also attach, in PDF format, exhibits to the comment.

Marc J. Randazza (AZ Bar No. 027861)
Randazza Legal Group, PLLC
2764 Lake Sahara Drive, Suite 109
Las Vegas, Nevada 89117
[email protected]

I don’t have a lot of time to compose scholarly comments on issues such as this proposed rule change. I’m a working lawyer. I am compelled, however, to take a few minutes to post this comment in opposition to adoption of the proposed amendment to ER8.4.
The proponent says the proposed amendment is necessary to combat workplace discrimination in law offices. Aren’t lawyers already subject to state and federal laws that prohibit workplace discrimination?
The proposed rule would prohibit speech deemed to be discriminatory if it occurs in conduct related to the practice of law. The First Amendment means that the government can’t prohibit offensive speech . How can the Arizona Supreme Court prohibit offensive speech if it occurs in any context that fits under a description as broad as conduct related to the practice of law? I believe that the rule is obviously unconstitutional.
For these reasons, I urge the Court to reject the proposed amendment to ER 8.4.

Nathan Hannah, #10908
520-322-5000
DeConcini McDonald Yetwin & Lacy PC
2525 E Broadway Blvd Ste 200, Tucson, Arizona, 85716-5300

Posted at the request of and on behalf of:
Josh Blackman
Associate Professor
South Texas College of Law Houston
1303 San Jacinto Street
Houston, TX 77002
713-646-1829
Office: 623T
[email protected]
Virginia Bar 78292

Robert J. Hommel
10214 North Tatum Blvd.
A-900
Phoenix, AZ 85028
480-778-0123
[email protected]
Bar No. 09725
May 18, 2018
I respectfully urge the Court to adopt R17-0032. I was raised in deeply committed Christian family. I consider my relationship with God integral to my self-identity. I know of nothing in the teachings of my faith that allows discrimination in the administration of justice, on the basis of gender identity or sexual identity, or any other lawful conduct. It is sad that discrimination is being advocated by some who claim to advocate religious freedom. As Dr. King taught us, we cannot change others, we can only change ourselves. This is the essence of religious freedom. I hope the court finds the courage to do what is right. History has seen these moments before.

Amelia Craig Cramer
1400 Legal Services Building
32 N. Stone Ave
Tucson, AZ 85701
520-740-5598
[email protected]

I write in support of Petition R-17-0032 to amend Rule 42, Arizona Rules of the Supreme Court, Ethical Rule 8.4 to conform to ABA Model Rule 8.4(g).
The proposed language in the ABA Model Rule has been suggested by some who have commented to be unconstitutionally vague or to violate the First Amendment. However, the language and terms contained in the Model Rule mirror language and terms already contained in numerous statutes in Arizona and other jurisdictions that have been upheld under the First Amendment and have been found enforceable not unconstitutionally vague. Accordingly, those arguments are specious.
It is important that members of the Bar be held to the highest ethical standards and that the Court expressly inform all members of the Bar and members of the public that discrimination and harassment are inconsistent with the high ethical standards to which lawyers are held. The proposed language would do just that.

Martin Lynch
1120 W Broadway Rd, #55, Tempe AZ, 85282
602-550-6304
[email protected]

To the Honorable Chief Justice of the Arizona State Supreme Court,

The Court may accept or deny the proposed change to ER 8.5 “misconduct” because it makes no difference and is thus inconsequential.

Why does anyone think that the language of ER 8.4 matters? Especially Rule 8.4 “Misconduct”? The rule is not enforced and the Public is not protected. This observation is easily confirmed.

Last check, of 3688 Bar Complaints there were 12 lawyers that got “Disbarred”. Of those, some were whistle blowers being punished by means of retribution while others were 80 or 90 years old and suffering from dementia. Does anyone believe that all the remaining 3676 Bar Complaints are frivolous and without merit? I can tell you most certainly that The People are beginning to understand how utterly dangerous it is to have anything to do with the Justice system. Oh sure, some lawyers get a note in their file that disappears in 6 months. Others must serve a suspension during the Christmas / New Year’s holiday. Some even must sit in the corner and have a time out.

Example #1: Suborning Perjury – Family Court has something called the “Silver Bullet”. That is where one party, usually the woman, signs a fraudulent document created by a lawyer and foisted upon both parties falsely alleging Domestic Violence. The other victim (both parties are victims) gets thrown out of their own house and voila! The client owns “everything” because possession is 9/10 of the law. This sets off a Custody Battle where the client later discovers that “everything” must be sold to pay all the billable hours. We have proof positive that “Suborning Perjury” is not “Misconduct” since all such complaints get dismissed. No exceptions can be found.

Example #2: False Documents, ARS Title 13 Chapter 27 - The same lawyer pays his Psychologist buddy to put his name on a report, affirming that one party who has been a fine parent for the past ten years, is now suddenly so dangerous to their own children, they must pay $250 for supervised visits, 2 hours, twice a month. Most times the Psychologist even fails to interview the targeted parent. To refute these false allegations, the targeted parent must pay $25,000 for another Psychologist to determine “They’re not that bad”. The split here is 60% men, 40% women who are falsely accused. Again, all bar complaints are dismissed. “We got your money. Too bad you don’t like it.” No wonder people go nuts.

You might think I am writing this to complain, but not at all. When the State Bar whitewashes criminal activity they do so representing the Supreme Court of the State of Arizona by means of Supreme Court Rule 32. Therefore, there is no further recourse available in any State court thus establishing standing in US District Court. In most cases the fraud is blatant, 18 USC § 1341, the Hobbs Act, 18 USC Chapter 96; et al. All of these crimes are actionable under 42 USC 1983, 1985; et al. All the exclusion doctrines are easy to comply with and customer satisfaction is off the charts. To be fair, not all lawyers are felons but the public thinks they are. Lawyer jokes are only funny because they are usually true. We have no advertising, only word of mouth but the demand for honest services is overwhelming. It’s a stampede!

The Code of Judicial Conduct, Canon #1 (Rule 1.2) directs us do nothing to compromise the integrity of the Judicial system in the minds of the public. I find it to be professionally rewarding to be following that rule to the letter. One lawyer was recently appointed to a case Sua Sponte over objections, demanding almost $600 per hour with a $10,000 retainer. We asked him why he was worth $600 when POTUS makes $200 per hour and the Justices of SCOTUS make even less. How is $600 not fraud? He replied that he had no idea why he makes so much while a teacher makes $30 per hour for services of comparable value. He immediately resigned and disappeared, another victory, like taking candy from a baby.

Wherefore: Per Art 6 Section 3 of the AZ Constitution the Chief Justice has sole Administrative authority over all the courts including rule making by means of administrative orders. The composition of ER 8.4 Misconduct means nothing. Put anything. It doesn’t matter. If the Rules are not going to be enforced, who cares? Otherwise, if the Leadership of the Judiciary decides to enforce the Rules and preserve the integrity of the Judiciary and the Legal profession, that would change everything. Absent that, we will rely on this new emerging system of Lawyers who really do police themselves. We like it.

All interested persons including the rule change petitioner, the distinguished Ms Dianne Post, may rest easy. The reality of professional conduct in the eyes of the State Bar will remain the same regardless of what ER 8.4 says.

Respectfully and Sincerely, May 18, 2018
Martin Lynch

The National Lawyers Association, for the reasons in the attached statement, respectfully asks this Court to reject ABA Model Rule 8.4(g) and deny Petition R-17-0032.

National Lawyers Association
5830 N. Spruce Avenue
Kansas City, Missouri 64119
(844) 917-1787
[email protected]
Joshua McCaig, Missouri Bar No. 56059

I respectfully request this Court to adopt ABA Model Rule 8.4(g) and approve Petition R-17-0032. The crux of the proposed amendment enhances the core values of the State Bar of Arizona and advances an important public policy interest against harassment and discrimination in the practice of law.

Model Rule 8.4(g) does not pretend to be a panacea for every possible forum of discrimination or harassment. However, the amendment clearly is an initial attempt to curb arbitrary and invidious practices based on the enumerated classifications in the rule and furthermore, an effort to improve legal protections offered to historically disadvantaged groups. As noted in the petition, misconduct involving harassment and discrimination undermines the credibility of the legal profession and detracts the sacred trust the public places in the profession. In Palmore v. Sidoti, the United States Supreme Court stressed that “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” 466 U.S. 429 (1984). By adopting Model Rule 8.4(g) this Court affirms its commitment to prompting a fair and responsible practice of the law and in turn rejects directly or indirectly giving effect to private biases that harm ethnic minorities, women, religious minorities, the LGBTQ community, and other groups facing discrimination. In sum, this petition offers the Court an opportunity to pave a more responsible and fair future for generations of lawyers. For the forgoing reasons, I respectfully request this Court to adopt ABA Model Rule 8.4(g) and approve Petition R-17-0032.

Respectfully,

Hawar Sabir
111 E Taylor St
Phoenix, AZ 85004
623-606-8644
[email protected]

Los Abogados Hispanic Bar Association hereby writes in support of Petition R-17-0032 and urges this Court to adopt ABA Model Rule 8.4(g).

This rule states it is misconduct to engage in conduct that a lawyer knows or reasonably should know is harassment or discrimination based on race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. This rule is important because it enforces the type of anti-discrimination principles that Arizona lawyers should be expected to embody. Los Abogados in particular supports efforts to make Arizona a more welcoming environment in both the legal community and beyond.

Although some claim that Model Rule 8.4(g) poses concerns under the First Amendment’s Free Speech Clause, the rule is tailored against knowing action that constitutes either harassment or discrimination. Arizona law has long recognized the need to combat harassment and discrimination in certain circumstances, see A.R.S. §§ 13-2921; 41-1463, and has been able to achieve this need while still balancing legitimate forms of free speech. There is no reason why the same balance cannot be struck under Model Rule 8.4(g).

Moreover, Model Rule 8.4 appropriately limits its scope by stating that it does not apply to the ability of a lawyer to accept, decline, or withdraw from representation of a client. This restriction protects legitimate free speech rights of lawyers in choosing whom to represent—or not represent.

Ultimately, our rules of professional responsibility must reflect that Arizona will not allow the use of harassment and discrimination in the practice of law. Los Abogados therefore supports the proposed rule change.

Los Abogados Hispanic Bar Association
Post Office Box 813
Phoenix, Arizona 85001
Michael Valenzuela, Vice President (#27375)
[email protected]

I write in support of Petition R-17-0032 to amend Rule 42, Arizona Rules of the Supreme Court, Ethical Rule 8.4 to conform to ABA Model Rule 8.4 (g). It occurs to me people with power or privilege "doth protest too much" when they use so many words to defend the right to say "I was just kidding." When I've heard "I was just kidding" from people who teased and/or dismissed my concerns because I was female or poor or powerless or lesbian, it always sounded defensive and hollow. I agree with Mr. Long who suggests the rule change might support "the dissemination of values of inside and outside the profession." When my father would correct my older brother's rude remarks he wasn't throwing out free speech, he was promoting considerate speech so we would all feel welcome and safe at the supper table. Seems like a worthy aspiration for courthouses too.

Jean Rukkila
1685 Buttermilk Lane
Prescott, AZ 86305

Attached is my comment opposing the petition.

David J. Euchner, #021768
33 N. Stone Ave., 21st Floor
Tucson, AZ 85701
(520) 724-9107
[email protected]

Patricia A. Sallen, Attorney at Law
Bar No. 012338
3104 E. Camelback Road #541
Phoenix, Arizona 85016
480-290-4841
[email protected]

Please find my comment in support of R-17-0032 and amending Ethical Rule 8.4 attached.

Lambda Legal Defense and Education Fund, Inc. ("Lambda Legal") writes in support of Petition R-17-0032 and urges this Court to adopt ABA Model Rule 8.4(g). Attached please find our comments outlining the importance of and the need for adopting Model Rule 8.4(g). We appreciate your time and consideration of this matter.


Sincerely,
Ethan Rice
Fair Courts Project Attorney
Lambda Legal
120 Wall Street, 19th Floor
New York, NY 10005
(212) 809-8585
[email protected]
Admitted to practice in
New York and Florida only
FL Bar # 56897
NY Bar # 5255997

I write in support of Petition R-17-0032 to amend Rule 42, Arizona Rules of the Supreme Court, Ethical Rule 8.4 to conform to ABA Model Rule 8.4(g). I respectfully urge the Court to adopt the amended Rule.

The Rule reflects the higher standards of conduct that the legal profession should, but often does not, strive to uphold. Discrimination and harassment, and institutional indifference to them, impose significant public costs in addition to private harms. When, for example, harassment derails the careers of women in the law, or discrimination limits the advancement of people of color, these harms are personal for sure, but they also inflict serious damage on the profession as a whole. While individual victims may have remedies under the law for some, but not all, forms of discrimination and harassment, the Rule vindicates the important separate principle that the profession should be able to police itself to prevent these behaviors from undermining confidence in, and effectiveness of, the legal system itself.

Many of the comments in opposition to the Petition incorrectly assert that the Rule would somehow infringe on First Amendment rights of lawyers. Most of these seek to elide the well understood distinction between speech and conduct established in over 50 years of civil rights progress. The Rule adheres to well-settled principles that non-discrimination requirements for the practice of a business or profession violate neither the speech nor the religion protections of the First Amendment.

Thank you for considering these comments.

William Hardin
Osborn Maledon, PA
2929 N. Central Ave.
Suite 2100
Phoenix, AZ 85012
Phone: (602) 640-9322
[email protected]

Steven W. Fitschen (on behalf of the National Legal Foundation and the Congressional Prayer Caucus Foundation)

Committee Name: N/A

2224 Virginia Beach Blvd., Ste. 204
Virginia Beach, VA 23454

(757) 463-6133

[email protected]

Virginia Bar Number44063

Attached please find comments in opposition to the proposed rule filed on behalf of the National Legal Foundation and the Congressional Prayer Caucus Foundation

Commenter's Names:
Timothy Sandefur
Christina Sandefur
Matthew R. Miller
Jonathan Riches
Aditya Dynar
Veronica Thorson

Mailing Address:
Scharf-Norton Center for Constitutional Litigation
at the Goldwater Institute
500 E. Coronado Rd.
Phoenix, AZ 85004

Phone Number:
(602) 462-5000

Fax Number:
(602) 256-7045

Email Address:
[email protected]

Bar Number:
Matthew R. Miller (#033951)
Aditya Dynar (#031583)

On behalf of myself and 101 other Arizona licensed attorneys, one legal organization, and one law firm, I attach – both in PDF and Word formats – a joint Comment opposing the adoption of ABA Model Rule 8.4(g) in Arizona.

Bradley S. Abramson
AZ Bar No. 029470
15100 N. 90th Street
Scottsdale, AZ 85260
480-444-0020
[email protected]

For the reasons stated in the attached Comment letter, I recommend that this Court reject the proposed change to Rule 8.4 and deny Petition R-17-0032.

John J Park, Jr.
442 Brookhaven Court
Gainesville, GA 30501

678-347-2200
[email protected]

WILLIAM G. MONTGOMERY
MARICOPA COUNTY ATTORNEY
(FIRM STATE BAR NO. 00032000)

MARK FAULL
CHIEF DEPUTY
301 WEST JEFFERSON STREET, SUITE 800
PHOENIX, ARIZONA 85003
TELEPHONE: (602) 506-3800
(STATE BAR NUMBER 011474)
[email protected]

MARICOPA COUNTY ATTORNEY’S RESPONSE TO PETITION TO AMEND ER 8.4, RULE 42, ARIZONA RULES OF THE SUPREME COURT

The Arizona Attorney General submits this comment regarding R-17-0032 Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court.

Mark Brnovich
Attorney General
(Firm Bar No. 14000)

Rebekah Browder (Bar No. 24992)
Angelina B. Nguyen (Bar No. 30728)
Assistant Attorneys General
2005 N. Central Ave
Phoenix, AZ 85004
(602) 542-7768
[email protected]

Based on the ten enumerated objections therein, the undersigned 38 lawyers file the attached joint comment against adoption of ABA Model Rule 8.4(g) and urge this honorable court to deny the subject petition.

Mauricio R. Hernandez
SBN 020181
PO Box 7347
Goodyear, AZ 85338
(623) 363-2649
[email protected]

Samuel Green
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
[email protected]
AZ Bar # 032586

James Campbell (with permission)
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020
[email protected]
AZ Bar # 026737


For many of the reasons detailed in the joint comment submitted by Bradley S. Abramson on May 21, 2018, we write in opposition to the petition to amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court. The amendment is unnecessary and unconstitutionally burdens protected speech. We urge the Court to reject it.

Attached please see the Reply from the initial petitioner below.

Dianne Post
006141
Central Arizona National Lawyers Guild

Dianne Post
Central Arizona National Lawyers Guild
1826 E Willetta St.
Phoenix, AZ 85006-3047
602 271 9019
[email protected]
Bar No. 006141

The U.S. Supreme Court Supreme created a Federal Judiciary Workplace Conduct Working Group on Dec. 31, 2017 to review sexual harassment in the workplace. Their report was released on June 1, 2018. In their research, they also relied on the 2016 EEOC study as I did and found similar patterns in the federal judiciary. They recommend a strong policy with effective complaint procedures and multiple channels including more and less formal methods. They also recommend effective training. These trainings need to be for CLE credit from the Bar and Judicial Council.

They are calling for explicit language prohibiting both sexual and other workplace harassment beyond just the courtroom. They specifically include sexual harassment and gender identity as areas to address. The committee created a model EDR plan with non-discriminatory language and made several suggestions for improvement of the existing plan including expanding coverage, using legal definitions of sexual harassment to be clear, defining wrongful conduct and extending the time to file a complaint.

The report of the committee is 144 pages and too late to attach. But you can find it at:

REPORT OF THE FEDERAL JUDICIARY WORKPLACE CONDUCT
WORKING GROUP
TO
THE JUDICIAL CONFERENCE OF THE UNITED STATES
JUNE 1, 2018

The suggested changes to our ethics rule are completely in line with the findings and recommendation of this report from the federal judiciary. Their report illustrates that this problem is deep and wide spread and must be addressed with specificity and determination not just platitudes that only continue the status quo.

Dianne Post
Petitioner

Dianne Post
Central Arizona National Lawyers Guild
1826 E Willetta St.
Phoenix, AZ 85006-3047
602 271 9019
[email protected]
Bar No. 006141

Many of the objections to the proposed ethical rule are based in hostility to the LGBT community and the same sex marriage decision. While we might have expected some significant direction from the Supreme Court in the Masterpiece Cakeshop Ltd et al v. Colorado Civil Rights Commission et al case, (No. 16-111, June 4, 2018) that did not occur. Instead the Supreme Court ducked the First Amendment question instead focusing on the failure of the Colorado Civil Rights Commission to give the baker a neutral hearing under the Free Exercise clause.

The Supreme Court was clear however that the laws and the Constitution can and must protect gay persons in the exercise of their civil rights, and that LGBT persons are entitled to equal treatment. “Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica¬ble public accommodations law.” That is precisely what the proposed ethical rule does.

We do have clear guidance from the Arizona Appeals Court in Brush and Nib Studio, LC, et al., v. City of Phoenix (No. 1 CA-CV 16-0602) June 7, 2018. The court was clear that a business cannot use religious beliefs to justify discrimination. Free speech cannot be used as a shield to protect a business owner’s decision to discriminate based on sexual orientation (¶21, 27), nor can religion be used as a shield to discriminate against certain customers (¶49).

The state does not lose its ability to regulate commercial activity because it has a speech component. (¶34) When the goal is a business operation not a religious activity, the message is not protected speech. (¶35) In the Brush & Nib case as in the opposition to this ethical rule, a parade of hypotheticals, (¶39) some completely outlandish, was trotted out. The court rejected those arguments because a person cannot claim a statute is overbroad because one can imagine some impermissible act. (¶38)

Eliminating discrimination is a compelling state interest (¶36), and anti-discrimination ordinances, here ethical rules for one profession, are not aimed at suppression of speech but elimination of discriminatory conduct. Freedom to express beliefs is not hindered. Rather the rule is aimed at the broader social purpose of eradicating barriers to equal treatment of all citizens in commercial marketplaces (¶50). The court should rely on the reasoning in Brush & Nib v. City of Phoenix and approve the rule petition.

Dianne Post
Petitioner