Proposed Arizona Amendment Compromises Attorneys’ Free Speech Rights

AP Images/Jacqueline Larma

Attorneys are asking the Arizona Supreme Court to reject a
proposed amendment to attorney ethical rules that would create
significant threats to the constitutionally protected rights of many
Arizona lawyers.

Dozens of individual attorneys—including some affiliated with
the Alliance Defense Fund, a legal alliance of Christian attorneys
and like-minded organizations defending the right of people to freely
live out their faith—filed a letter Friday with their request. An
addendum was filed Wednesday, as opposition to the amendment gained
the support of a total of 72 Arizona attorneys from diverse law
practices.

The proposed amendment would prohibit attorneys in many instances
from expressing views that others might perceive as biased, based on
sexual orientation and gender identity or expression. Lawyers who
advocate for certain legal positions, including the view that the law
should protect and preserve marriage as the unique union of a man and
a woman, could be punished if the amendment passes.

“No one should have their free speech rights threatened just
because they advocate a position that some consider politically
incorrect. Stifling the advocacy of attorneys is simply
unconstitutional,” says Gary McCaleb, ADF senior counsel. “Our
legal system promises all of its citizens the freedom to fully and
fairly debate the important questions of our day. This proposed
amendment needlessly undermines that constitutional guarantee within
the very profession that protects constitutional rights.”

“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…” stated the
letter, signed by 72 attorneys, asking the Arizona Supreme Court not
to grant the State Bar of Arizona’s request to amend ER 8.4, Rule
42.

The attorneys supporting the letter argue that the proposed
amendment is unnecessary, ambiguous and unconstitutional—violating
attorneys’ free speech and religious liberty rights. They note that
such a rule could compel speech, constitute viewpoint discrimination,
prohibit protected speech, violate the free exercise of religion,
marginalize people of faith in the legal profession and adopt an
ethical rule not enacted in any other state.

The Arizona State Bar considered a similar change—which would
have required all attorneys to affirm that they would not permit
considerations of “gender, race, religion, age, nationality, sexual
orientation, disability,or social standing” to influence their
work—to the Arizona Bar Oath of Admission in 2008. Many of the
attorneys opposing the newly proposed amendment also challenged that
change, which the bar chose not to pursue after receiving a
significant amount of public criticism.