Amendment to the Arizona Rules of Professional Conduct

To Members of the J. Reuben Clark Law Society in Arizona:

As one of its signature commitments, the J. Reuben Clark Law Society promotes and defends religious freedom and empowers its members to speak up on local issues important to them.  Without taking a position on this issue, we are alerting you to an important amendment to the Arizona Rules of Professional Conduct under consideration by the Arizona Supreme Court. In particular, the Arizona Supreme Court is considering amending its current misconduct rules to add ABA Model Rule 8.4(g) as Arizona Rule of Professional Conduct 8.4(h). This new rule aims to prohibit discrimination and harassment in “conduct related to the practice of law.” On the one hand, there are legitimate concerns about discrimination against those in protected classes. On the other hand, many worry that this proposal is overbroad and can impair religious liberty and free speech rights. Comments must be submitted by May 21, 2018.
 
On January 18, 2018, the Arizona Supreme Court issued an Order opening the proposed amendment for public comment. Copies of the Order and the petition requesting adoption of Rule 8.4(h) are attached.
Proposed Rule 8.4(h) provides:
It is professional misconduct for a lawyer to . . . (g) 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.  This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
 
Official Comments to the ABA version of the rule state that “discrimination includes harmful verbal . . . conduct [i.e., speech] that manifests bias or prejudice,” and further states that “[c]onduct related to the practice of law includes” not only “representing clients” and other formal aspects of law practice but also “participating in bar association, business or social activities in connection with the practice of law.”
 
Additional information about the proposed rule can be found in the following articles: Eugene Volokh, A Speech Code for Lawyers, Banning Viewpoints that Express Bias, Including in Law-Related Social Activities, Wash. Post, Aug. 10, 2016, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/10/a-speech-code-for-lawyers-banning-viewpoints-that-express-bias-including-in-law-related-social-activities-2/?noredirect=on&utm_term=.fec872b89bb4; Ronald Rotunda, The ABA’s Control Over What Lawyers Say Around the Water Cooler, Harv. L. Rec., Oct. 4, 2016,
http://hlrecord.org/2016/10/the-abas-control-over-what-lawyers-say-around-the-water-cooler/;  Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), 30 Geo. J. L. Ethics 195, 235 (2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2979495.
 
Comments on behalf of an individual JRCLS member (not on behalf of the Law Society) may be filed electronically by May 21, 2018. To do so, you must be a registered user of the Court Rules Forum (see “How to Register” below). Once you have registered, you must log in. Go to the Court Rules Forum page, http://www.azcourts.gov/Rules-Forum, and select the “Rules of the Supreme Court” folder. Search for R-17-0032. Once found, click on it and a new page will appear displaying information about the petition. Click “Add Reply” to begin the comment process.