Proposed state bar oath raises controversy among lawyers

The State Bar of Arizona is weighing whether to require new lawyers to swear they won't let their views on someone's sexual orientation affect their duty, a move foes said could force attorneys to represent clients whose view they find personally offensive.

Existing rules require an oath saying lawyers "will not permit considerations of gender, race, age, nationality, disability or social standing to influence my duty of care." The plan being weighed by the bar's board adds sexual orientation to that list.

Not signing the new oath, if it is adopted, is not an option: Attorneys cannot practice law in Arizona without being admitted to the bar.

The move has provoked severe objections from 31 attorneys who sent a letter to state bar President Ed Novak.

Tim Casey, one of those who is unhappy with the proposal, said it raises all sorts of issues. At the very least, he said, the wording "is so very vague it's scary."

Casey, who is Catholic, said he understands that if he agrees to take a case for someone who is gay he is required to do his best.

"My duty of 'due care' is the same for that person as if I were representing the pope himself," Casey said. But he said the language of the oath is so broad that it could be interpreted as a requirement for an attorney to accept a case that goes against his or her moral beliefs.

Novak said that's not true. He said the oath would simply spell out that attorneys who take on clients keep their personal views about homosexuality to themselves.

But attorney Ronald Meyer said if that's the case, then what the bar is proposing is unnecessary. Meyer, one of the more senior attorneys who signed the letter, said existing ethical rules already spell out that attorneys must do their best for their clients.

And Novak himself said rules say that lawyers do not have to - and, in fact, should not - take on cases where they feel they cannot properly represent the client's interests.

So what's the need? Novak acknowledged that it is designed to equate discrimination based on sexual orientation with other types of discrimination that already is prohibited in the bar oath.

"There has been for several years now a change with respect to the number of classes of people that we seek not to discriminate against," he said.

Casey, however, said there's one crucial difference.

He said federal law and federal courts have spelled out that it is illegal to discriminate on the basis of race, religion, age and similar factors. The oath, Casey said, simply mirrors those laws, much in the in the same way that lawyers swear to uphold the state and federal constitutions.

Casey said any move to make sexual orientation one of these "protected classes" should be decided by lawmakers or courts, not by the board of the state bar.

"If that's the way the law goes, so be it," he said. "It's not there yet."

Novak disagreed. "Our obligation as professionals we view as somewhat broader than the constitutional requirements."

Casey said he sees a broader agenda at work.

"There are people trying to make it difficult for professionals to exercise their religious convictions, their moral objections or their ethical objections in cases."

This is no different, he said, than efforts in some states to force pharmacists to prescribe birth control pills even if that is in direct violation of their religious beliefs.

Novak said he has not reached a decision yet on whether to proceed with the rule change. He said the full board is taking comments through Jan. 16 and will consider it after that date.

Casey, who is Catholic, said he understands that if he agrees to take a case for someone who is gay he is required to do his best.