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Last Post 20 Dec 2011 03:21 PM by  ecrowley
R-10-0031 Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court
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AZStateBar
Posts:

--
15 Jun 2010 12:13 PM
    R-10-0031
    PETITION TO AMEND ER 8.4, RULE 42, RULES OF THE SUPREME COURT

    Would make bias against certain classifications of people professional misconduct, and would add the classification of "gender identity or expression" to the enumerated classifications.

    Petitioner:
    John A. Furlong
    Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 200
    Phoenix, AZ 85016-6288
    (602)252.4804
    John.Furlong@staff.azbar.org

    Filed June 16, 2010

    Reopened for Comment. Comments due November 1, 2011.
    Petitioner may file a response to the comments on or before December 31, 2011.

    Motion to Withdraw Petition GRANTED, effective December 22, 2011.
    Attachments
    domanico
    Posts:

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    20 May 2011 10:54 AM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 00032000)

    MARK C. FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    faull@mcao.maricopa.gov

    Attachments
    GMcCaleb
    Posts:

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    15 Jul 2011 05:33 PM
    To the Court:

    I respectfully request that the Court consider this admittedly belated comment
    regarding this petion, for the reasons set forth in the attached document. The slight delay in filing since we learned of this was necessary for dozens of similarly concerned attorneys to review the comment and join with me in expressing opposition to the proposal.

    Sincerely,

    Gary S. McCaleb AZ Bar No. 018848
    ADF
    15100 N. 90th Street
    Scottsdale, AZ 85260
    480-388-8046 (direct)
    480-250-0932 (cell)
    480-444-0028 (FAX)
    gmccaleb@telladf.org

    Attachments
    GMcCaleb
    Posts:

    --
    20 Jul 2011 01:26 PM
    To the Court:

    On July 15, 2011, I submitted a Comment opposing this petition. Since that filing, other attorneys became aware of the issue and requested to join in support of that Comment. Accordingly, I am respectfully submitting a brief Addendum to document that 71 licensed Arizona attorneys from a broad spectrum of practices have now joined with me in opposing this Petition, and ask that the Court consider this additional support for the Comment.

    Sincerely,

    Gary S. McCaleb AZ Bar No. 018848
    ADF
    15100 N. 90th Street
    Scottsdale, AZ 85260
    480-388-8046 (direct)
    480-250-0932 (cell)
    480-444-0028 (FAX)
    gmccaleb@telladf.org
    Attachments
    MPalmer
    Posts:

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    27 Oct 2011 11:37 AM
    P. "Mike" Palmer
    18402 N. 19th Ave., #109
    Phoenix, AZ 85023
    Telephone: 602-513-3738
    mikepalmer_arizona@fastmail.fm
    Attachments
    DLPost
    Posts:

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    28 Oct 2011 01:18 PM
    Dianne Post, Bar No. 006141
    1826 E Willetta St
    Phoenix, AZ 85006-3047
    602-271-9019
    postdlpost@aol.com

    Attachments
    ericpost
    Posts:

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    31 Oct 2011 07:36 PM
    Eric Post
    3256 East Speedway Boulevard
    Tucson, AZ 85716
    Ofc: 520-207-9601
    FAX: 520-207-8244
    eric@ericpostlaw.com
    AZ Bar No: 020267

    Apparently ER 8.4 is being modified with the following language: [an attorney may not] "knowingly manifest a bias ... based on ... gender identity or expression..."

    A am aware that comment 3 to ER 8.4 includes similar language that a lawyer avoid gender bias. The comment only finds a violation "when such actions prejudice the administration of justice." This was not adopted by the Model Rule 8.4 and should be stricken.

    However, is a substantial difference between a comment in a rule and the rule itself. We should not march forward on this. What is the harm that this rule is trying to prevent? Do we really have large numbers of attorneys who's personal beliefs about gender expression are causing harm to the profession and to the public?

    I have has read the "Concerned Attorneys' Comment to Petition to Amend ER 8.4, Rule 42, and Arizona Rules to the Supreme Court" filed on July 14, 2011, by the Alliance Defense Fund. Further, Undersigned is listed as one of the concerned attorneys.

    I will not reiterate what is already said in the brief, only to say that I clearly support the arguments presented in the brief and wish to elaborate on how this rule change will personally impact me.

    Politics
    Persons entering politics as lawmakers have a substantial effect on justice. After all, it is the laws of the State of Arizona that justice is predicated upon. Such individuals (and myself perhaps some day) may be called up on give a position on gender identity and gender expression as well as other difficult topics like socioeconomic status as it relates to gov't programs (AHCCCS, ALTCS, etc.). If I or any other lawyer were to take a position against same sex marriage and work hard to promote that position as a politician, or as a lawyer supporting such a politician, would that be a violation of ER 8.4? Is the State Bar asking that lawyers abstain from running for office if they have an anti-homosexual platform? If I vote for a person running for office because of their "one man-one woman" marriage platform, knowing that this politician may successfully alter the rules in Arizona about gender identity/expression, and thereby alter the administration of justice, have I violated the rule? Lawyers should NOT be restricted from running for office, lobbying for any bills, supporting any candidates, or voting for any candidates even if the sole reason is for gender identity/expression or socioeconomic status. If an attorney stood up in public and said, "I am opposed to homosexual expression and speak out on behalf of the marriage bill" would that attorney be brought up on disciplinary charges? Would that attorney be in fear of being brought up on charges and therefore withhold free speech?

    Adopting this rule will have a chilling effect on the free speech and religious beliefs in the political process.

    Religion:
    I graduated from Linda Vista Bible College in 1992 with a 4.0 gpa in BIblical Studies. Three years later, I graduated from Bethel Theological Seminary with a Masters of Divinity graduate degree. I entered a Doctor of Ministry program shortly thereafter (thought I did not complete the program). With the M.Div, I became senior pastor of University Avenue Baptist Church in San Diego, California. I was licensed by the State of California to perform the sacraments including marriage. I intend to return to the pastorate before I retire, probably for a part time position and with the freedom to continue actively as an attorney with a lighter caseload.

    Part of my faith in Jesus Christ, and my oath upon becoming a church pastor with the American Baptist Churches of the Pacific Southwest (ABCPSW) is to uphold the teachings in the Scriptures, which clearly state that same sex relations are forbidden. I As a pastor, I was and will be committed to upholding church purity and I will deny a person from becoming an officer of the church under me (deacon, bishop, teacher, associate pastor, etc) for the sole reason that they are a practicing homosexual. This is non negotiable. Recently, across the country, there have been some homosexuals that take their denials to court. I would be in the position of holding firm before the Court and asking that the Administration of Justice allow the church and its pastor (me) to continue to deny the job based solely on my manifestation of bias. To do otherwise would be a violation of my oath and belief as a Christian and minister.

    While I regularly do choose to represent homosexual clients in personal injury cases, I want this to remain my choice. If a potential client is so obnoxious about their gender expression that I don't want to represent them for that sole reason, I should be free to make that biased choice.

    I disclose to my clients that I am a former church pastor and tell them at the initial interview if my personal and religious life will affect representation (for example, not representing a person who is suing a church, etc.) I also sometimes ask if my background causes them to be concerned about who they are hiring. Most appreciate the disclosure and hire me. Sometimes the thought of having a former church pastor raises bad memories and they want to go elsewhere. Could they turn around and file a complaint against me under the new rule? Will I be constantly defending myself for having the faith that I hold to? Unpopular and even hateful speech is still protected. Must I give up my First Amendment rights as well?

    This conflict between my oath as an attorney to uphold and abide by the ER's and my oath as a minister to uphold and abide by the Scriptures is in direct collision. With the adoption of the new language, I will be forced to choose between one or the other. Which shall I choose? Is the State Bar regulating that I must violate the Scriptures and renounce my oath, my faith and my belief in the Bible and Jesus Christ, or must I renounce my oath and profession as an attorney? Which is it?

    The adoption of the rule change will cause all Christians and Jews who follow the teachings of the Old Testament, and the law and the prophets, to question whether or not they are manifesting a bias (which is pretty much a given) and if that manifestation effects the administration of justice. This rule will have a chilling effect on an attorney's First Amendment right to Free Exercise of his/her religion and the free speech connected thereto. Further, being that the State Bar and Arizona Supreme Court are prohibited from entanglement, it should avoid such a rule change.

    Business Practice:
    Often potential clients contact me with a great and meritorious case asking for the fair and rightful administration of justice. In order to keep my business as a law firm active and viable and make payroll, we can only handle a few pro bono cases. I have often turned down representation, even after people plead with me to take their case because nobody else will --- for the sole reason that they cannot pay. Will I be in violation ER 8.4 because socioeconomic bias was the sole reason for not taking a case? I'll be unable to make payroll if I take on all the cases that come to me who cannot pay. I would like the freedom to continue to choose whether or not I can take on the case and not have to answer a bar complaint because I chose not to.

    Zealous Representation:
    Granted that the word zealous has been removed from the new attorney oath, we all do like to represent our clients well. If, during the administration of justice, I hire an investigator to check out the socioeconomic status, or gender identity/expression status of an opposing party in a child custody battle, how far is too far? How much leeway do I have to do my job? Child custody takes into account the fitness of a parent and their ability to financially rear the child. I am not the kind of person who likes to skirt too close to the rules. I would find myself nervous about such representation. Possibly I will never take a child custody case again for fear of violating ER 8.4 if amended and fear of violating other rules about competent representation.

    Recently I represented a lesbian in a property dispute / restraining order after a relationship breakup. I look back and shudder that my representation may cross over some ambiguous line as the gender identity / expression were investigated and presented during the administration of justice. I should not be looking over my shoulder at the State Bar and asking if they approve of my strategy and representation.

    Additional points from colleagues that I have discussed this rule change with:
    The problem is leaving ultimate decision making on future ethical violation allegations to State Bar prosecutors and many hundreds of judges, commissioner, justices of the peace and other judicial officers throughout the state. These issues of bias in gender expression/identity and socioeconomic should not be regulated as “ethical” issues in any manner by the State Bar as an arm of government.

    It is intrusive for the Bar to launch a license suspension/revocation proceeding just because a lawyer has a pattern of turning down representation of poor, broke, gay people, or wearing an "Steal from the Rich, Give to the Poor" t-shirt at a deposition. The Court can sanction the latter if the behavior warrants, we do not need a Bar ethics rule to do the job that the Court already has jurisdiction over. Lawyers who misbehave bad enough in Court will surely be dealt with on that level.

    What if a firm fires a client because they learn the person is a man instead of a woman? A sex change or transvestite bias?

    What about E.R. 8.3? Am I to turn in any lawyer that I know to be biased regarding gender identity? We all have biases. The better way is to know of our biases and inform potential clients rather than be concerned that such a bias will get a bar complaint and then refrain from informing others.

    This rule should not be adopted.

    Thank you,
    DLPost
    Posts:

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    01 Nov 2011 10:55 AM
    Dianne Post
    1826 E Willetta St
    Phoenix, AZ 85006-3047
    602-271-9019
    postdlpost@aol.com
    Attachments
    ericpost
    Posts:

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    01 Nov 2011 12:39 PM
    Eric Post
    3256 East Speedway Boulevard
    Tucson, AZ 85716
    Ofc: 520-207-9601
    FAX: 520-207-8244
    eric at ericpostlaw.com
    AZ Bar # 020267

    Perhaps my prior reference to a well known story character that is biased against the rich could be better analogized with a reference to the tax bill. What about a "Tax the Rich" t-shirt for those who dislike the uber rich and lobby for tax laws aimed solely at the rich (socioeconomic bias)? Such laws, or interpretations of existing lawsto not let the rich have special breaks is certainly a socioeconomic bias and changes or interpretations of law will fall under the category of administration of justice.

    We all have biases. It is what makes humans different. Lets celebrate those differences responsibly on our own and not homogenize people just because they are attorneys. There are biases against religion and Christians that I wish would go away, but I do not think regulating them away is the proper course of action.

    ecrowley
    Posts:

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    01 Nov 2011 01:06 PM
    Charles Robert Walker
    Walker & Walker, Attorneys at Law, PLC
    201 N. Montezuma Street, Suite 303
    Prescott, AZ 86301-3007
    928-445-1911
    cnnw@msn.com

    IN THE SUPREME COURT
    STATE OF ARIZONA
    IN THE MATTER OF:

    PETITON TO AMEND ER 8.4, RULE 42, ARIZONA RULES OF THE SUPREME COURT
    Supreme Court No. R-10-0031
    Comment to Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court
    The undersigned attorney hereby comments to the Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court. The State Bar of Arizona has petitioned this Court to amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court, by adding the following language: “It is professional misconduct for a lawyer to knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.”

    For the reasons set forth in the July 15, 2011 Petition filed by Alliance Defense Fund and signed by 42 attorneys, I concur with every statement therein, and respectfully submit this petition.
    CONCLUSION
    For the foregoing reasons, the undersigned attorneys oppose the State Bar’s proposed amendments to the Arizona Rules of the Supreme Court.
    Respectfully submitted this 31st day of October, 2011.


    Charles R. Walker, 021376

    Charles Robert Walker
    Walker & Walker, Attorneys at Law, PLC
    201 N. Montezuma Street, Suite 303
    Prescott, AZ 86301-3007
    928-445-1911

    Electronic copy filed with the Clerk
    of the Supreme Court of Arizona
    this 31st day of October, 2011



    By: CRW


    A copy was mailed to:
    John A. Furlong
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 200
    Phoenix, Arizona 85016

    Mark C. Faull
    Chief Deputy
    Maricopa County Attorney’s Office
    301 W. Jefferson Street, Suite 800
    Phoenix, Arizona 85003

    Gary S. McCaleb
    Alliance Defense Fund
    15100 North 90th Street
    Scottsdale, Arizona 85260

    this 31st day of October, 2011


    By: CRW

    gdmccarthy
    Posts:

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    01 Nov 2011 01:47 PM
    Glendon McCarthy
    Phoenix, AZ
    glendonmccarthy@hotmail.com

    IN THE SUPREME COURT
    STATE OF ARIZONA
    IN THE MATTER OF:

    PETITON TO AMEND ER 8.4, RULE 42, ARIZONA RULES OF THE SUPREME COURT
    Supreme Court No. R-10-0031
    Glendon McCarthy’s Comment to Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court

    The undersigned attorney hereby comments to the Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court. The State Bar of Arizona has petitioned this Court to amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court, by adding the following language: “It is professional misconduct for a lawyer to knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.”

    For the reasons set forth in the July 15, 2011 Petition filed by Alliance Defense Fund and signed by 71 licensed Arizona attorneys, I concur with every statement therein, and respectfully submit this petition. The provision significantly jeopardizes an attorney’s autonomy over client selection and retention and, more importantly, violates due process, free speech, and free exercise guarantees.

    CONCLUSION
    For the foregoing reasons, the undersigned attorney opposes the State Bar’s proposed amendments to the Arizona Rules of the Supreme Court.
    Respectfully submitted this 1th day of November 2011.


    Glendon McCarthy, 024091




    JAG3ESQ
    Posts:

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    01 Nov 2011 04:54 PM
    John A. Gulick III
    30487 N. 77th Place
    Scottsdale, AZ 85266-1823
    480.502.1947
    480.502.1998
    John.Gulick@azbar.org
    Bar Number011873

    IN THE SUPREME COURT
    STATE OF ARIZONA
    IN THE MATTER OF:

    PETITON TO AMEND ER 8.4, RULE 42, ARIZONA RULES OF THE SUPREME COURT
    Supreme Court No. R-10-0031
    John Gulick's Comment to Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court

    The undersigned attorney hereby comments to the Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court. The State Bar of Arizona has petitioned this Court to amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court, by adding the following language: “It is professional misconduct for a lawyer to knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.”

    For the reasons set forth in the July 15, 2011 Petition filed by Alliance Defense Fund and signed by 71 licensed Arizona attorneys, I concur with every statement therein, and respectfully submit this petition. The provision significantly jeopardizes an attorney’s free speech and free exercise constitutional guarantees.

    Regarding both of these constitutional protections, The Holy Bible statement of witness apostle Paul in Romans 1:22 and 1:24-28, Authorized King James Version, would appear determinative for those practitioners of Christian faith and belief. A licensee should be able to retain his or her belief in this scripture and the God of its authorship, and be able to so practice without fear of ethical sanction by his or her profession for such religious belief and its expression in otherwise legal and ethical practices.

    For the foregoing reasons, the undersigned attorney opposes the State Bar’s proposed amendments to the Arizona Rules of the Supreme Court.
    Respectfully submitted this 1st day of November, 2011.

    John A. Gulick III
    AZ Bar No. 011873


    dbrooks
    Posts:

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    01 Nov 2011 05:43 PM
    David P. Brooks (#012645)
    Brooks & Affiliates, PLC
    1930 N. Arboleda, Suite 217
    Mesa, Arizona 85213
    dbrooks@brooksandaffiliates.com

    See attached.
    Attachments
    robertaslivesay
    Posts:

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    01 Nov 2011 06:27 PM
    Roberta S. Livesay
    HELM, LIVESAY & WORTHINGTON, LTD.
    1619 E. Guadalupe Road, Suite 1
    Tempe, AZ 85283
    Phone: 480-345-9500
    FAX: 480-345-6559
    Email: livesay.roberta@hlwaz.com
    AZ Bar No. 010982
    Attachments
    pgentala
    Posts:

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    01 Nov 2011 06:55 PM
    Peter A. Gentala, 021789
    1700 West Washington Street, Suite H
    Phoenix, Arizona
    Telephone: 602-926-5544
    pgentala@azleg.gov

    The undersigned attorneys hereby submit this comment to the State Bar of Arizona’s Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court. The State Bar has petitioned this Court to amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court, with the following language: “It is professional misconduct for a lawyer to knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.” We oppose this proposal because, as we will explain, it is a misguided effort that threatens the constitutional rights of attorneys while seeking to address a nonexistent problem of attorney discrimination. Adopting other regulatory language, which we discuss below, would protect the rights of attorneys while affirming the dignity of all clients by protecting them from all forms of invidious discrimination.
    Attachments
    Jakeslaw
    Posts:

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    01 Nov 2011 07:47 PM
    John J. Jakubczyk #5894
    4643 E. Thomas Road, Suite 5
    Phoenix, AZ 85018
    602-468-0030
    jakeslaw@qwest.net


    The undersigned attorney hereby submits this comment to the State Bar of Arizona’s Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court. The State Bar has petitioned this Court to amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court, with the following language: “It is professional misconduct for a lawyer to knowingly manifest bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, gender identity or expression, or socioeconomic status in the course of representing a client when such actions are prejudicial to the administration of justice; provided, however, this does not preclude legitimate advocacy when such classification is an issue in the proceeding.”

    I oppose this proposed rule amendment because it is a misguided effort that threatens the constitutional rights of attorneys, while seeking to address a nonexistent problem of attorney discrimination. My comments are attached herein for the Court's consideration.
    Attachments
    aldboyle
    Posts:

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    01 Nov 2011 08:19 PM
    Amy L. D. Boyle, Esq.
    7844 S. Splinter Way
    Tucson, AZ 85756
    Telephone: 520-306-6597
    amyboyle@amyldboyle.com
    AZ Bar No.028302


    To the Court:

    I respectfully request that the Court consider this comment regarding this petion, for the reasons set forth in the attached document.

    Sincerely,

    Amy L. D. Boyle


    Attachments
    Beid
    Posts:

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    01 Nov 2011 11:00 PM
    Benjamin R. Eid
    2400 W. Dunlap Ave, Suite 305
    Phoenix, AZ 85021
    602-395-2054


    Comment is attached.
    Attachments
    ecrowley
    Posts:

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    20 Dec 2011 03:21 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 200
    Phoenix, Arizona 85016-6288
    Telephone: (602) 252-4804
    John.Furlong@staff.azbar.org


    Motion to Withdraw Petition to Amend ER 8.4, Rule 42, Arizona Rules of the Supreme Court
    Attachments
    Topic is locked