Lawyers get look at new anti-discrimination preambleLawyers get look at new anti-discrimination preamble

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North Carolina lawyers will soon have an opportunity to scrutinize a revised version of last year’s controversial proposal to add an anti-discrimination provision to the Rules of Professional Conduct.
The State Bar Council recently approved the ethics committee’s request to publish a modified amendment for comment in the upcoming State Bar Journal.
The newly crafted proposal will revisit last year’s debate over whether adding an anti-bias clause to the preamble of the ethics rules would violate attorneys’ First Amendment rights. Opposition had been so strong that it was withdrawn from consideration at the Bar’s quarterly meeting last July.
The old version urged lawyers not to discriminate based upon factors such as race, sex, religion and age. But a point of contention arose because sexual orientation was included as a protected status.
Attorneys and the ACLU of North Carolina argued that including sexual orientation could violate attorneys’ personal or religious beliefs and other aspects of the provision could violate their constitutional rights.
The constitutional concerns were valid, according to Susan Dotson-Smith, a member of the advisory council of the N.C. Association of Women Attorneys and one of the advocates who urged the ethics committee to reconsider a revised proposal this year.
“The first one’s language was very encompassing,” said Dotson-Smith. “We’ve tightened it up to clarify that this is about actions and conduct instead of speech, and we’ve crystallized the categories a little bit more to reflect what we see in current law.”
That means that sexual orientation remains one of the included categories. The latest version has also added a new status — gender identity — to be consistent with the terms used in the North Carolina’s School Violence Prevention Act, an anti-bullying law the General Assembly passed last year that included protections for transgender students.
Both the state ACLU and the N.C. Advocates for Justice participated in an informal working group with NCAWA to analyze the failed provision before recommending the current verbiage.
Now, both organizations support the proposal.
In a March 30 letter to Bar executive director Tom Lunsford, N.C. ACLU legal director Katherine Lewis Parker explained that the organization changed its position because the provision’s new wording was clearer.
“It places the emphasis where it should be — on the actions of lawyers, rather than their words,” wrote Parker. “Further, the proposed language also clarifies that attorneys are in no way prevented from advocating for their cases or beliefs.
“Because this new language focuses on the aspiration of non-discrimination in action and still protects the attorney’s right and ability to advocate on any issue, we wholeheartedly support the addition of this new paragraph to the preamble of the Rules of Professional Conduct.”

Ethical charges?
Originally, attorneys worried that acting on their personal or religious convictions could subject them to ethics charges if the anti-discrimination clause were adopted.
But Dotson-Smith reiterated that the amendment for North Carolina remains only an aspirational goal.    That means lawyers should have no concerns that the anti-bias provision to the preamble would be used to discipline them, said Alice Mine, State Bar ethics counsel.
“The preamble is what comes before the actual rules,” Mine told North Carolina Lawyers Weekly. “The rules themselves are mandatory and they are what a lawyer will be disciplined for violating. But the preamble is just a statement of our general principles, and lawyers are never cited for or disciplined for violating the preamble.”
Several states already have actual rules, not value statements, in their codes of conduct that prohibit discrimination in protected categories, including sexual orientation, according to the American Bar Association.

More support
Dotson-Smith said that she hopes that the new anti-discrimination provision will satisfy attorneys’ concerns and praised the Bar for resurrecting the issue.
“It’s more carefully written, and I think that’s a tribute to the process of having the feedback and having time to take a good idea and make it better,” she said. “This is certainly a much cleaner presentation of what the goals are, and now will hopefully garner more support.”
However, she anticipates some pushback from people about the inclusion of the new gender-identity category.
That’s because some of the objections last year reflected prejudices about sexual and gender orientation, she said.
However, “the real valid issues that came out were constitutional, and we’ve covered those,” she said. “Other concerns that were raised may be raised again, but that’s why we need more public support.”
When North Carolina Lawyers Weekly reported on the failure of the first proposal last year, Mine said that if the ethics committee had received an equal level of support as they did opposition, they might have sent it back for re-drafting instead of withdrawing it altogether.

Next steps
The Journal is expected to arrive in lawyers’ mailboxes in the next two weeks. Attorneys then have the opportunity to send letters to the Bar up until the next meeting of the ethics committee in July.
Mine recommends that all letters be sent by the end of June.