Nation - North Carolina Attorneys argue views over adding anti-bias language Proposal would add language to preamble of conduct rules to protect gays

By Gary D. Robertson Associated Press Writer RALEIGH, N.C. (AP) -- North Carolina's attorneys are arguing again over whether to encourage colleagues to keep personal prejudice out of their work by endorsing language designed to protect gays, and most recently, transgender people. A committee of the North Carolina State Bar met Thursday in Pinehurst to consider whether to add to the preamble of their Rules of Professional Conduct a provision stating plainly that lawyers should not discriminate while working. But lawyers are at odds over whether the words "sexual orientation" and "gender identity" should be in a list of characteristics that shouldn't evoke bias. Proposal supporters argue people of all sexual preferences need to feel confident that attorneys will help them get a fair shake in the legal system. Bar rules for half of the states make some reference to discouraging discrimination against gays, lesbians or transgender people, or defining it as misconduct, according to data provided by the American Bar Association. A somewhat similar proposal generated by a North Carolina Bar committee was withdrawn last year after complaints. "As members of the Bar we have to look toward what access to justice for all (is and) what our duties are," said Susan Dotson-Smith, an Asheville lawyer concentrating on bankruptcy proceedings and who helped work on this year's proposed language. The "revision does look at how can we ensure that our full population in North Carolina has access to justice that is fair and nondiscriminatory." Alice Mine, assistant executive director of the Bar, a state agency that regulates more than 20,000 attorneys practicing in North Carolina, said the preamble can't provide the grounds for disciplining a lawyer by the Bar. Current rules already allow an attorney to withdraw representation in some situations. Lawyers opposing the change said they already treat clients with respect but believe it would be the first step toward forcing them to take cases about issues they disagree with on moral grounds. They say they could be prevented from refusing to represent a same-sex couple who want to adopt a child or gay person seeking other redress that could run counter to their own views on homosexuality, for fear that they may be subject to punishment by the Bar. "While you may disagree with my Judeo-Christian beliefs regarding human sexuality, there is not a compelling justification for labeling my beliefs unethical," wrote Anthony Biller, a Cary attorney. "We certainly should not impose an ethical obligation to conform our practices to align with one side on this contested issue." Dozens of lawyers and other residents on both sides of the issue have sent letters to the Bar responding to the proposal, which could be given final approval by the Bar's chief governing board Friday if two committees agree to the language. The state Supreme Court would have the last say on the changes before they are implemented. The justices have rarely blocked such changes. Here's the proposed amendment: "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 nondiscrimination does not prohibit a lawyer's advocacy on any issue." Dotson-Smith calls the provision aspirational language designed to invoke among attorneys the goal of providing equal justice for all people. It's unethical for lawyers to simply refuse a client because of their skin color or religion, said Ellen Gerber of High Point, a lawyer for more than 30 years who often works on estate planning issues for gays and lesbians. Sexual orientation and gender identity should be included, she said. "If it wasn't I would feel that the Bar was just discriminating in the very way we ought not to discriminate," said Gerber, who is a lesbian. "That would be a terrible message to send to the public." The amendment is supported by the North Carolina Advocates for Justice -- the state's trial lawyers group -- the North Carolina Association of Women Attorneys and the American Civil Liberties Union of North Carolina. The ACLU had expressed concerns about last year's proposal because it said it could violate free-speech rights by directing a lawyer to "avoid knowingly manifested through word or deed" bias or prejudice. Last year's language didn't include "gender identity." Bryce Neier, a Fayetteville attorney, wrote that adding the phrase to the list also would give status to a group of people who haven't received special legal protection and will be viewed as "an attempt to influence this ongoing societal debate." "My question is why do we need this. Why is it even necessary?" Neier asked in an interview, referring to the entire provision. "It's a springboard for the gay agenda." Whatever the outcome of this week's meetings, Dotson-Smith said she's already pleased that no one is arguing against language about other forms of discrimination listed in the amendment: "I'm mildly hopeful and am certainly grateful for the work the State Bar already has done." Published: Fri, Jul 23, 2010

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