Changes to Lawyers Oath Considered

PHOENIX (Observer Update) - The State Bar of Arizona is considering a recommendation to the Arizona Supreme Court to update the Oath of Admission to the Bar. A draft proposed revised Oath was approved unanimously by the Board of Governors for circulation to the membership and for comment. This draft proposed version will be discussed and likely voted upon at the January 30 meeting of the Board of Governors.

The draft contains the following provision "I will not permit considerations of gender, race, religion, age, nationality, sexual orientation, disability, or social standing to influence my duty of care." This provision has been the subject of an unusually large volume of comments received by the Board in opposition, including an 8-page comment presented by the Alliance Defense Fund and signed by a large number of lawyers, including lawyers who work for the Alliance Defense Fund, the Goldwater Institute, the Maricopa County Attorney, Schmitt Schneck Smyth & Herod PC, the Center for Arizona Policy, and others. That comment challenges the constitutionality of the above provision and argues that it should not be included. Other comments express that the inclusion of sexual orientation in the above provision is "offensive," "appalling," and "endangers the preservation of the integrity of our Constitution."

The Lambda Legal Defense and Education Fund and perhaps the National Lesbian & Gay Law Association ("NLGLA"), through their Arizona attorney members, intend to submit comments in opposition to the legal arguments presented by the Alliance Defense Fund and in support of the proposed provision. It should be noted that Arizona Judicial Canon 3 B (6) already provides that: "A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice, based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. This section 3 B (6) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or other similar factors, are issues in the proceeding." Moreover, existing Arizona Supreme Court Rule 42, Ethical Rule 8.4(d) comment 3 already provides that attorneys are obligated to refrain from "knowingly manifest[ing] by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status" because such manifestation will be prejudicial to the administration of justice.

The proposed revised oath would appear merely to be adding a reminder of the attorney's already-existing obligation, not creating a new obligation.