The North Carolina State Bar is considering an amendment to the Preamble of the North Carolina Rules of Professional Conduct for attorneys that is different from last year’s proposal, but would still include “sexual orientation” and “gender identity” as protected classes. As stated in the introduction to the original proposal, the Preamble “sets forth the values of the legal profession in North Carolina,” so this proposal has significant implications for the practice of law in our state, and all concerned attorneys need to make their voices heard.
About 10 years ago, the Supreme Court of North Carolina, which has the final say on proposed amendments for the State Bar, did not approve a measure with similar language. Their decision came after attorneys across the state wrote the Justices and expressed concerns that the adoption of these terms in State Bar policy would violate some attorneys’ rights to Free Speech, Free Exercise, and Free Association.
The current proposal reads:
Rule 0.1, Preamble: A Lawyer’s Responsibilities
 The North Carolina Constitution requires that “right and justice shall be administered without favor, denial, or delay.” Public confidence in the justice system is strengthened when all participants are treated equally, fairly, honestly, and respectfully within the system. A lawyer, as a representative of and crucial contributor to the justice system, should foster public confidence in the administration of justice by treating all persons the lawyer encounters in a professional capacity equally, courteously, respectfully, and with dignity regardless of a person’s race, sex, national origin, religion, age, disability, sexual orientation, gender identity, marital status, or socioeconomic status.
While we all agree that all people should be treated with courtesy, dignity, and respect, the State Bar should not attempt to force attorneys to accept policies that promote controversial lifestyles and behavior choices, especially those that run counter to their sincerely held religious and moral beliefs about marriage, human sexuality, and personal privacy. Adding the words “sexual orientation” and “gender identity” to the Preamble would create a protected status for behaviors that many understand from Biblical, moral, medical, scientific, and social research to be harmful to children and adults physically, psychologically, and spiritually.
In addition, the State Bar is proposing to amend the Comment to Rule 1.1 of the Rules of Professional Conduct, which currently reads:
Rule 1.1, Competence
A lawyer shall not handle a legal matter that the lawyer knows or should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The proposed amendment to the comments on this rule states:
“ Competency includes a lawyer’s awareness of implicit bias and cultural differences relative to a client or anyone involved in a client’s matter that might affect the lawyer’s representation of the client. This is to ensure understanding of the client’s needs, effective communication with the client and others, and adequate representation of the client. (emphasis added)
While the Preamble has been described as presenting values to which attorneys should “aspire,” the possible comment change to Rule 1.1 could become grounds for disciplinary action against an attorney. This is particularly concerning, because the notion of “implicit bias” by definition involves an involuntary action, which should not be the basis for discipline.
Concerned attorneys are encouraged to either:
NC Family will continue to update you as this issue unfolds.