Tuesday, May 11, 2010
The Indiana Supreme Court approved the stipulated discipline of a public reprimand for manifesting bias or prejudice based on sexual orientation. The stipulated facts:
In June 2008, Respondent began receiving on her unlisted phone number persistent pre-recorded messages from a company seeking a person by the name of Respondent's husband. Respondent and her husband agreed that Respondent would call the company at the toll-free number given in the messages. Accordingly, Respondent called the number and spoke to a male representative of the company, identifying her husband as her client. Noting what she thought was a feminine-sounding voice, respondent gratuitously asked the company's representative if he was "gay" or "sweet." After the company representative commented on the unprofessional nature of this inquiry, the phone conversation ended abruptly.
The attorney admitted the violation of Indiana Rule 8.4(g) and apologized to the company representative. The rule makes it professional misconduct to:
...engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge's finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.
As readers are doubtless aware, the ABA Model Rules do not contain a version of Indiana Rule 8.4,subsection (g). Expressions of bias are addressed in comment  to Model Rule 8.4 and are typically treated as a subspecies of the prohibition against conduct prejudicial to the administration of justice. There are cases where lawyers have been disciplined for racist and sexist comment in depositions or other court proceedings.