State Bar Contemplates Anti-Bias Rule for Lawyers : Courts: The proposal would punish attorneys whose speech or actions display any kind of prejudice. Critics say it is too vague and could infringe on free expression rights.

A sweeping proposal to ban sexual, racial and other forms of bias by California’s 128,000 lawyers has come under sharp attack by civil libertarians and other critics who fear the rule would violate free speech rights.

The proposal, an outgrowth of recent studies finding sex bias in the legal system, would prohibit an attorney from “manifesting, by words or conduct,” discrimination on grounds that range from religion to “socioeconomic status.”

The restriction, now being considered for adoption by the State Bar, would be imposed as a new ethical rule for the legal profession. Violation could result in disciplinary action ranging from public reprimand to disbarment.

The rule, sponsored by the Bar’s Committee on Women and the Law, does not prohibit what it calls “legitimate advocacy.” But concern is mounting that, while well-intended, the measure’s wording is so broad and vague that a lawyer could even be punished for criticizing a church on abortion policy or telling an ethnic joke to a colleague.

“What the State Bar is trying to do is unconscionable,” said Edward Tabash, a Beverly Hills attorney and active civil libertarian. “For the official California state agency that controls the legal profession to so brazenly disregard the First Amendment is shocking.”

Backers of the proposal reply that such fears are misplaced, but concede there could be debate over the meaning of the measure.

“Any time you get a group of attorneys commenting on the language of something like this, you’re going to have diversity of opinion,” said Lynda A. Romero of San Diego, chair of the Bar committee. “But this is extremely important. . . . I’m certainly hopeful it will be acted on favorably.”

An earlier version of the bias rule, proposed in 1986, languished because of concern over its wording. But then two major studies on sex bias were issued, generating renewed support for a broad policy barring not only sex discrimination but other forms of bias as well.

The Committee on Women in the Law in 1989 surveyed more than 2,000 female lawyers in the state and detected widespread perceptions of bias against women. Substantial numbers--43% or more--said they felt “negative bias” from superiors, peers, clients and opposing counsel.

Last year, a special committee of the state Judicial Council released the results of a three-year study concluding there was far-ranging sex discrimination in the court system. The report cited instances of “openly hostile” behavior and demeaning remarks by judges against female lawyers. It also said women attorneys were often propositioned by male lawyers and subjected to offensive jokes or sexual innuendoes.

The council, which functions as the policy-making arm of the state judiciary, later urged the Bar to adopt an ethical rule barring lawyers from exhibiting sexual, racial, religious or other bias in any legal proceedings.

Meanwhile, the Committee on Women in the Law came up with a redesigned bias proposal, based on a model rule drafted by the American Bar Assn., for conduct by judges. The new proposal in full says:

“An attorney shall refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel, or others. This Rule does not preclude legitimate (legal) advocacy when (those factors) or other similar factors are issues in the proceedings.”

The proposal is expected to go before the Bar’s Board of Governors this spring. If the board approves the proposal, it would be sent to the state Supreme Court for final adoption and become binding for all practicing lawyers in California.

The rule, however, is drawing fire on a number of fronts.

Questions abound. Does the rule cover only formal legal proceedings or does it also cover any public conduct, or even private conduct, by lawyers? What is bias or prejudice against “socioeconomic status?” How is “legitimate advocacy” to be defined? Could a lawyer be disciplined for making an off-color remark offending women? Could a fundamentalist lawyer assert publicly that homosexuals risk damnation? Could a black lawyer be punished for calling another black an “Uncle Tom” or a white “Mr. Charlie”?

In letters to the Bar, attorneys attacking the measure say that while they do not condone discrimination, they see an unfortunate parallel with the proliferation of college speech codes for students recently criticized as infringing on free expression.

“One man’s ‘racist slur’ may be another man’s ‘legitimate advocacy,’ ” noted Los Angeles attorney Stephen F. Rohde. Another Los Angeles lawyer, Michael S. Klein, asked: “Are lawyers permitted to speak only if they are ‘politically correct’ ?”

Asked for comment, Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, said she sees the measure as unconstitutional. “Nobody wants to see such things as intentional harassment of a witness, but judges can take care of that,” said Ripston. “This (proposal) appears aimed at free speech.”

The rule also is meeting a chilly reception within Bar organizations. A special State Bar commission studying the rules of professional conduct concluded the proposal was vague and overly broad. It noted that bias already can be dealt with under a state statute that bars lawyers from “offensive” conduct and under the broad-ranging contempt powers exercised by judges.

Some local Bar associations appear skeptical as well. The Bar Assn. of San Francisco recently voted in favor of outlawing discrimination but decided against supporting the proposal drafted by the Committee on Women and the Law. The Santa Clara County Bar Assn. also rejected the proposal, with one official calling it “Big Brother at its worst.”

A committee of the Los Angeles County Bar Assn. currently reviewing the measure also has concerns about its potential impact. Committee chairman John Carson said the proposal appears to open the way for punishment without proof of intentional bias. “The concept is good, but there is a question over what is the right language,” Carson said.

For their part, backers of the measure say opponents are making too much of the broad language of the measure and are failing to recognize the importance of a strong stand against bias in the profession.

“This is an issue whose time has come,” said Pamela J. Jester of Berkeley, former co-chair of the Women in the Law committee. “But some see it as too tough to deal with.”

Los Angeles Superior Court Judge Judith C. Chirlin, who served as vice chair of the Judicial Council committee on gender bias, believes the need for the rule was underscored by the repeated examples of discrimination uncovered by the council committee during its statewide study.

“So much of what we have found involved what has been acceptable in the legal culture,” said Chirlin. “We are trying to change the legal culture. We’re seeking a readjustment of people’s attitudes as to what is acceptable behavior and what is not.”

Supporters of the proposal deny that the State Bar, in enforcing such a rule, will find it difficult to distinguish between trivial remarks or actions and serious instances of discrimination. Nor, they say, will lawyers be unduly restricted in making public statements or arguing cases in court or other legal proceedings.

For example, they say, lawyers could still argue against employment preferences for racial minorities without offending the anti-bias rule. But a demeaning remark to a rape victim--such as a suggestion “she was asking for it”--would be a violation of the rule, as would an open racial slur, attorney Romero said.

Robert M. Talcott, a Los Angeles attorney who serves as chair of another State Bar committee now reviewing the rule, says the Judicial Council’s gender-bias report showed the necessity for strong measures to combat discrimination.

“The need for a rule is fairly well documented,” said Talcott. “We don’t know whether this will solve the problem. But it certainly would be a move in the right direction.”