broke, don’t fix it,” deserves equal consideration.
—Andrew F. Halaby
Brianna L. Long
“What should ye do then, should ye
suppress all this flowery crop of know-
ledge and new light sprung up and
yet springing daily in this city? Should
ye set an oligarchy of twenty engross-
ers over it, to bring a famine upon our
minds again, when we shall know
nothing but what is measured to us
by their bushel? … Give me the liberty
to know, to utter, and to argue freely
according to conscience, above all lib-
erties.” – John Milton
John Milton’s 20 engrossers are at it
again. This time they’re the 589 members
of the ABA’s policy-making House of Dele-
gates. And two Ethics Counsel of the State
Bar of Arizona.
In January’s ARIZONA ATTORNEY, after pages of analysis, Ethics
Counsel matter-of-factly advise us that a “racist and sexist joke
about a member of the U.S. women’s national soccer team” told
by a partner in a law firm at a firm-sponsored dinner party would
“clearly be prohibited” by new Section 8. 4(g) of the ABA’s Model
Rules of Professional Conduct. That is to say, if Section 8. 4(g) of
the Model Rules were the law in Arizona (which, thankfully, it is
not … yet), you or I could be subject to complaint, hearing, discipline and possible disbarment … for telling a joke.
To refresh your recollection, the new Model Rule makes it pro-
fessional misconduct for a lawyer “to engage in conduct that the
lawyer knows or reasonably should know is harassment or discrim-
ination 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.”
The hypothetical offered by Ethics Counsel has a law firm asso-
ciate (whom you, the reader, mentor) attending the aforemen-
tioned dinner party. After the joke is told, awkward silence ensues,
the moment passes, and the dinner concludes without incident,
except that the associate is deeply offended (emphasis added). The
associate, as your mentee, wants your opinion as to whether the
partner’s conduct is unethical under the Model Rule.
I submit that Ethics Counsel’s conclusion that it clearly is, is
clear as mud.
www.peakforensics.com Jefford Englander
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