The Colorado Supreme Court on Monday affirmed an earlier determination by a hearing board of the Office of the Presiding Disciplinary Judge that an attorney violated Rule 8.4(g) of the state's rules of ethics by using an anti-gay slur to refer to a judge in an email he sent to his clients in a dispute the property owners filed against a construction contractor (article available here). The lawyer secured a favorable outcome for the clients who reported him to disciplinary authorities when the relationship soured.
Rule 8.4(g) bars attorneys from referring to a person involved in the legal process with language that demonstrates "bias or animus" towards sexual orientation. The lawyer's use of the word “f- -” was at issue.
The attorney argued that the rule violates the First and Fourteenth Amendments because it allegedly is too broad and vague. He also argued that to establish that someone has violated the rule, the state would need to demonstrate that he actually harbored anti-gay bias. The Supreme Court rejected those arguments, determining that the rule only covers behavior that is objectively considered to be biased, and thus is narrowly tailored and not broad.
"Any objective person would find that [the attorney's] specific use of an anti-gay slur in communicating with his clients about the presiding judge violated Rule 8.4(g)," the opinion reads. "The word is pervasively understood as an anti-gay slur."
"In his private life, [a lawyer] is free to speak in whatever manner he chooses," the hearing board wrote in its ruling which was affirmed by the state supreme court. "When representing clients, however, [a lawyer] must put aside the schoolyard code of conduct and adhere to professional standards."