Arizona Should Reject a Speech Code for Attorneys 

by Matt Miller
May 21, 2018

A new ethical rule being considered by the Arizona Supreme Court would allow the state bar to punish attorneys for things they say at debates, speaking engagements, and social events.  Not only is this unconstitutional under the U.S. and Arizona constitutions, it would set the Arizona bar—which is known for its professionalism and collegiality—up for division and rancor among its members.  As the Goldwater Institute argues in a Cmt Opposing Amdt to ER8.4, the Court should reject this rule.

The proposed rule is based off model language written by the American Bar Association.  Under the proposed amendments to Arizona Ethical Rule 8.4, it would be “professional misconduct” for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  So far, seemingly so good.  We do not want attorneys harassing people in the courtroom or discriminating against clients based on their ethnicity.

The problem arises when we look at what the proposed rule actually does.  Comments to the rule clarify that it would cover “harmful verbal or physical conduct that manifests bias or prejudice towards others.”  And it would not cover this conduct only in the courtroom, or when providing advice.  The rule would even include “participating in bar association, business or social activities in connection with the practice of law.”

Now imagine a lawyer debating the proper solution to the homelessness crisis in Arizona.  If her someone thinks her suggestions “manifest bias” toward homeless individuals based on their “socio-economic status,” she could be found guilty of professional misconduct under the rule.

This is dangerous.  The ABA was misguided to propose this rule in the first place, and states should reject its invitation to make it binding on their bars.  Nationally, the rule has been the subject of extensive criticism.  See here, here, and here.

Arizona should reject this proposal.  Our state is known for having a collegial and professional bar.  This rule will threaten that environment by giving anyone the ability to file a bar complaint against an attorney for something she said not while in court or advising a client, but at a social function, or debate, or while giving public comments.

Attorneys’ free-speech rights can be proscribed when they are in court, or acting as fiduciaries.  To take an obvious example, attorneys cannot lie to clients or judges.  But outside of the legal setting, the ability of state bars to regulate attorney speech is restricted by the First Amendment and by state constitutional free-speech clauses.

Like all Americans, attorneys enjoy the right to speak freely and to say things that may—potentially—offend someone.  Indeed, the risk for offense is ever-present during robust debates about important issues.  Problems are not solved through silence.  They are solved through public engagement and thoughtful consideration.

The Tennessee Supreme Court recently rejected this rule.  The Arizona Supreme Court should do the same because it threatens the free-speech rights of attorneys and silences their voices in public.  The Goldwater Institute’s comment to the Court can be found here.

Matt Miller is a Senior Attorney at the Goldwater Institute, where he leads the Institute’s free-speech litigation efforts.