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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 22 May 2018 01:31 PM by  Dianne Post
R-17-0032 Rule 8.4, Rule 42, Ethics Rules
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Author Messages
Dianne Post
New Member
Posts:3 New Member

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23 Feb 2017 04:00 PM
    Dianne Post
    Central Arizona National Lawyers Guild
    1826 E Willetta St.
    Phoenix, AZ 85006-3047
    602 271 9019
    postdlpost@aol.com
    Bar No. 006141
    Filed February 23, 2017

    Would amend ER 8.4 to add language adopted by the ABA in Model Rule 8.4 as it applies to non-discrimination.

    3/2/2017 Motion for Expedited Consideration DENIED. The petition will be considered in due course during the Court's 2018 rules cycle.

    Comments must be submitted on or before May 21, 2018.
    Attachments
    kimcolby
    New Member
    Posts:1 New Member

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    03 May 2018 08:44 AM
    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
    kcolby@clsnet.org
    Kimberlee Wood Colby's D.C. Bar No. 358024
    Attachments
    Mark Schmitt
    New Member
    Posts:1 New Member

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    07 May 2018 02:25 PM
    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
    markschmitt@azbarristers.com
    #5502
    Lindsay Short
    New Member
    Posts:1 New Member

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    14 May 2018 01:19 PM
    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
    jbouma@swlaw.com
    ahalaby@swlaw.com
    lshort@swlaw.com
    Attachments
    David Marhoffer
    New Member
    Posts:1 New Member

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    15 May 2018 12:41 PM
    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: davmar@misterbusinesslaw.com
    Daniel Shumway
    New Member
    Posts:1 New Member

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    15 May 2018 04:00 PM
    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
    Eugene Volokh
    New Member
    Posts:1 New Member

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    15 May 2018 04:06 PM
    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
    volokh@law.ucla.edu
    Attachments
    Josh
    New Member
    Posts:1 New Member

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    16 May 2018 01:24 PM
    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
    jsmith@pageaz.gov
    Bar No. 033014
    Stephen Baum
    New Member
    Posts:1 New Member

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    16 May 2018 02:51 PM
    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
    swb@swbaum.com

    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….
    Jay Allen
    New Member
    Posts:1 New Member

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    16 May 2018 03:58 PM
    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
    mrandazza
    New Member
    Posts:1 New Member

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    16 May 2018 07:13 PM
    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
    ecf@randazza.com
    Attachments
    Nathan Hannah
    New Member
    Posts:1 New Member

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    17 May 2018 08:26 AM
    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
    Mo
    New Member
    Posts:6 New Member

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    17 May 2018 05:31 PM
    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
    JBlackman@stcl.edu
    Virginia Bar 78292
    Attachments
    robert hommel
    New Member
    Posts:1 New Member

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    18 May 2018 11:14 AM
    Robert J. Hommel
    10214 North Tatum Blvd.
    A-900
    Phoenix, AZ 85028
    480-778-0123
    rhommel@hommelpc.com
    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
    New Member
    Posts:1 New Member

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    18 May 2018 11:50 AM
    Amelia Craig Cramer
    1400 Legal Services Building
    32 N. Stone Ave
    Tucson, AZ 85701
    520-740-5598
    amelia.cramer@pcao.pima.gov

    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
    New Member
    Posts:19 New Member

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    18 May 2018 01:58 PM
    Martin Lynch
    1120 W Broadway Rd, #55, Tempe AZ, 85282
    602-550-6304
    MDL2222222222@gmail.com

    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
    Attachments
    National Lawyers Association
    New Member
    Posts:1 New Member

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    18 May 2018 04:21 PM
    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
    jmccaig@nla.org
    Joshua McCaig, Missouri Bar No. 56059
    Attachments
    Sharon Yee
    New Member
    Posts:1 New Member

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    18 May 2018 07:05 PM
    As a citizen against discrimination, I am asking the court to adopt the Rule 8.4, Rule 42. This rule defines discrimination as misconduct. Discriminatory behavior by lawyers impacts our society and skews the legal process. Please adopt the rule and allow for all citizens to have non-discriminatory representation.
    Thank you,
    Sharon Yee
    Private and concerned citizen
    Hawar Sabir
    New Member
    Posts:1 New Member

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    19 May 2018 01:16 AM
    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
    hsabir@asu.edu
    Attachments
    Elizabeth Roberg
    New Member
    Posts:1 New Member

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    19 May 2018 03:12 PM
    We know there is discrimination in the legal system, and by lawyers, and this proposed rule will protect everyone. It will level the playing field for the most vulnerable groups who have been historically silenced and abused.
    You are not authorized to post a reply.
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