Conservative AZ Attorneys Object to Adding ’Sexual Orientation’ to Oath

by Kilian Melloy

EDGE Staff Reporter

Monday December 15, 2008

The State Bar of Arizona is contemplating a revision to its existing oath of office for lawyers that includes a promise on the part of the attorney not to discriminate against clients based on factors such as race, age, and sexual orientation. But some lawyers see this as an infringement on their First Amendment rights.

A Dec. 15 article posted at the Web site Intellectual Conservative condemns the revision, calling it a matter of Arizona's State Bar "Throwing our constitutional rights of free speech and freedom of association down the drain," and worries that the revised oath "would silence conservative viewpoints on gay issues."

The article quotes the proposed revision's added sentence, which reads: "I will not permit considerations of gender, race, religion, age, nationality, sexual orientation, disability, or social standing to influence my duty of care."

The primary reason for objection to the revised oath cited in the Intellectual Conservative item is that conservative lawyers would be prevented from opposing GLBT equality or otherwise "publicly expressing a viewpoint on gay issues."

The article also speculated that the oath would be used to force Christian attorneys' groups to accept gays and lesbians into their ranks.

The article pointed out the State Bar has the power to take away the licenses of attorneys that it deems to be in violation of their oaths of office. One interpretation is that the fear that conservative--and religious conservative--lawyers have is that they would be forced to uphold GLBT equality under threat of losing their livelihoods, and possibly prevented from pursuing anti-gay initiatives.

The proposal is also seen as objectionable on ideological grounds, and not necessarily only to conservatives; moderates might also shy from a provision that, as the Intellectual Conservative article had it, constitutes an "inappropriate and a gross abuse of power by the Bar."

In a letter to the Arizona State Bar, over 30 co-signatories expressed a concern that the revised oath's "vaguenss violates due-process and free-speech guarantees and that its application infringes First Amendment rights by compelling conduct and expression in conflict with an attorney's philosophical or religious beliefs as well as his other professional responsibilities."

The letter, addressed to Arizona State Bar President Edward F. Novak, went on to list specific objections to the proposed revision, including the argument that, "An attorney's subjective opinions, desires, or 'considerations' simply do not influence the duty of care; thus, a rule that precludes that duty from being 'influenced' by certain 'considerations' is nonsensical and ultimately without effect."

Indeed, the authors argue, such an oath, if interpreted with strict literalism, could interfere with an attorney's ability to represent minorities in court cases.

Alternatively, the letter envisions a lawyer being forced to undertake representation of gay or lesbian clients, despite a lawyer's personal feelings about GLBT equality issues.

In such circumstances, the letter's authors argue, "the proposed provision prevents an attorney from represent the client because his decision might be deemed to have been 'influenced' by 'considerations' of 'sexual orientation.'"

Adds the letter, "The pernicious result grates against an attorney's autonomy to select the cases in which he will be involved and the clients he will represent.

"It also conflicts with portions of the Ethics Rules permitting lawyers to decline appointments or withdraw from representation where client's cause is 'repugnant' to the attorney."

Continues the letter, "More importantly, compelling that attorney to represent the client conflicts with federal and state constitutional concerns of due process, free expression, freedom of conscience, and free exercise of religion."

Much of the letter reiterates concerns centered around the free exercise of religion, with the authors ultimately suggesting a simpler and more universal oath: "I will conduct my affairs with fairness and treat all clients with the utmost dignity and respect."

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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