by Matt Miller
August 30, 2018
Should attorneys be subject to punishment for things inside or outside the courtroom that could be perceived as bias or prejudice toward others? It’s pretty easy to see how this could have a chilling effect on their ability to speak freely. Fortunately, the Arizona Supreme Court agreed: Today, the Court rejected a proposed change to the rules that govern the speech of state attorneys.
The proposed rule change—which would have amended Arizona Ethical Rule 8.4—was uncontroversial on its surface, expressing the idea that attorneys shouldn’t discriminate against people. The problem wasn’t the text of the rule, but rather the proposed comments explaining how the proposed rule would operate.
Specifically, the comments said that the rule 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.”
As we said in a formal comment that we filed with the Court, the rule meant that attorneys would be at risk of professional sanction for speech they engaged in outside of the courtroom or the attorney-client relationship. Every debate they engaged in, every speech they gave at a conference, and anything they wrote on social media could be flyspecked for evidence of “manifest bias” toward a multitude of different groups. For instance, if an attorney expressed disagreement with a particular solution for addressing the opioid crisis, this might be taken as evidence of bias based on someone’s “socio-economic status.” Had the rule change gone into effect, attorneys might be afraid to speak for fear for reprisal.
The proposed amendments were drafted by the American Bar Association, and various groups have urged their adoption by state bars around the country. Tennessee rejected the rule change in April. Now, the Arizona Supreme Court has joined the Volunteer State in standing up for the First Amendment rights of its attorneys when they speak, debate, and write outside of the courtroom. Hopefully, other state high courts will follow suit.
Matt Miller is a senior attorney at the Goldwater Institute, where he leads the Institute’s free-speech litigation efforts.