Bar continues debate on non-discrimination preamble

By PAUL THARP, Staff Writer

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The Ethics Committee of the State Bar considered a controversial amendment to the preamble to the Rules of Professional Conduct at its quarterly meeting late last week in Pinehurst.

The original amended language provided that a lawyer, “[w]hile employed in a professional capacity … should avoid knowingly manifesting through word or deed or bias or prejudice based upon a person’s race, gender, national origin, religion, age, disability, sexual orientation, marital status or other protected status or personal characteristic.”

That language was tailored after lawyers – including the ACLU – voiced concerns that the language would limit free speech.

The amended language provided, “While employed or engaged in a professional capacity, a lawyer should not discriminate on the basis of a person’s race, gender, national origin, religion, age, disability, sexual orientation, or gender identity. This responsibility of non-discrimination does not limit a lawyer’s right to advocate on any issue.”

In a debate that lasted nearly an hour, Bar councilors grappled with issues relating to the scope of the preamble and whether lawyers who fail to adhere to what were described as its “aspirational” goals can be subject to professional discipline.

Responding to an inquiry raised by councilor Michael Robinson, ethics counsel Alice Neece Mine said the Bar has never cited the preamble as a basis for discipline. “Only a violation of a rule will lead to professional discipline,” she said.

As Mine and others noted, it was always implicit that the preamble was not a rule.

Robinson proposed a more explicit statement of the intent and scope of the preamble.

“Where does it say that this is aspirational?” he asked. “It talks about a lawyer’s responsibilities. If this is a responsibility, not an aspiration, then it would have the force of prohibiting certain things. We wouldn’t need to say it if it were only aspirational.”

Councilor Fincher Jarrell and Judge Frank D. Whitney raised similar issues.

“If I refuse a client representation because I don’t want to represent a homosexual, would I be flying in the face of this?” Jarrell asked. “It bothers and offends me for the Bar to tell me if I don’t take on a client I am violating an aspirational goal.”

Whitney added, “When we are sworn in, we raise our right hand and swear to uphold the rules. This may be aspirational, but we swear to uphold it. Because of some attorneys’ personal beliefs, this could create a conflict in the heart.”

Mine suggested an amendment to the scope to provide that the preamble is never a basis for professional discipline.

The proposed comment to the preamble states, “The Preamble reflects the aspirational goals of the legal profession and, together with this note on Scope, provides general orientation.”

The committee voted to accept the limiting language of the scope, which will be published for comment. The issue of amending the preamble will be taken up again at the Bar’s October meeting.