High court kills anti-bias measure, won’t say why

By SYLVIA ADCOCK, Staff Writer

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An amendment to the Rules of Professional Conduct that said lawyers should not discriminate has been rejected without comment by the N.C. Supreme Court.

The move by the justices in an administrative meeting means the issue – which the State Bar hotly debated for nearly two years – is dead.

The amendment approved by the full State Bar council added two sentences to the preamble: “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.”

The justices do not have to give a reason for their decision and did not provide one.

After Lawyers Weekly requested an interview with Chief Justice Sarah Parker about the issue, a spokeswoman released the following statement from Parker: “The court does not make comments on decisions made in conference.”

G.S. § 84-21 explicitly states that when rules adopted by the State Bar council are amended, they are to be certified by the Supreme Court, entered upon its minutes and published in the North Carolina Reports. But it also provides that the court “may decline to have so entered upon its minutes any rules, regulations and amendments which in the opinion of the Chief Justice are inconsistent with this Article.”

Representatives of groups that pushed for the amendment were disappointed that it was rejected and that the court did not give a reason for its action.

 “We’re just incredibly disappointed that the Supreme Court rejected the language … that the State Bar Ethics Committee and the full complement of Bar councilors approved,” said Katy Parker, legal director of the state chapter of the American Civil Liberties Union.

 “It’s disappointing that we haven’t been provided a rationale as to why. It’s such an odd decision, and the court owes the Bar and the citizens of this state a reason for this decision that basically says lawyers can discriminate.”

Brad Bannon, a Raleigh attorney who advocated for the amendment, said in an e-mail that he was amazed that the court did not feel that it owed an explanation.

“I understand why the court declines to discuss its judicial decision-making conferences, but those conferences end with a written opinion that explains their decision. By contrast, rejecting this amendment was a legislative exercise, governed by § 84-21, which presumes the validity of amendments unless they are inconsistent with the Bar’s governing statutes at Chapter 84. … I cannot imagine how any of it violated Chapter 84 or any other rule. If it did, as a self-governing profession, we deserve to know how and why.”

Bannon continued, “We also deserve to know whether the Court was influenced by a lobbying effort that attacked the amendment solely because it included LGBT citizens within the class of human beings who deserve access to our courts. … We deserve to know whether the Court’s decision was about the law or simply about politics.”

During the months of wrangling over the language in the amendment, the inclusion of sexual orientation and gender identity turned into a hot-button issue for the councilors, and some attorneys who opposed the amendment said it would impinge upon the freedom of religion of an attorney who felt that homosexuality was wrong on religious grounds.

In recent weeks, a number of attorneys who opposed the measure wrote letters to the justices urging them not to approve the amendment. Jere Royall, an attorney who works for the N.C. Family Policy Council, a conservative group that lobbied against the amendment, said he wrote to each justice and encouraged others to as well.

Royall’s letter said in part, “We should not ‘aspire’ to embrace, encourage, or facilitate behaviors that many attorneys understand from medical, scientific, social, moral, and historical research to be harmful to children and adults. Including the terms ‘sexual orientation’ and ‘gender identity’ would violate the United States’ and North Carolina’s constitutionally protected freedoms of speech and religion.”

Some attorneys said during the debates that they were concerned that a lawyer who had been found to do something deemed discriminatory could be disciplined, but the Bar’s ethics counsel said because the amendment was part of the preamble, it would not have the force of a rule. A second sentence was also added to clarify that the amendment would not limit a lawyer’s right to advocate on any issue.

In a prepared statement, the N.C. Association of Women Attorneys said it was grateful to the many organizations that supported the measure, including the N.C. Advocates for Justice and the N.C. Association of Defense Attorneys.

 “It is unfortunate that the Supreme Court’s response was to summarily reject the idea that lawyers should not engage in discriminatory behavior in their professional lives – especially when this amendment was passed by the State Bar after so much opportunity for public comment, discussion and debate,” Susan Dotson-Smith said in the statement.

State Bar President Anthony di Santi said he’s disappointed in part because the amendment received “extensive debate before the Ethics Committee and extensive debate before the council.” But, he said, “we recognize the supervisory position of the Supreme Court.”

The ACLU’s Parker said it is important to remember that the amendment had been designed to be aspirational.

“What leaders in the community lawyers are, and what a wonderful thing to have as an aspirational goal that they won’t discriminate,” she said. “The fact that the Supreme Court has a problem with that concerns me.”