Eric Post
3256 East Speedway Boulevard
Tucson, AZ 85716
Ofc: 520-207-9601
FAX: 520-207-8244
[email protected] 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,