The risk of offending members
Part of the question of what to say in such a statement is the reality that taking a position on an event or person has the potential to offend some members, who may even choose to leave a voluntary bar or challenge whether a mandatory one has overstepped its bounds. Bars each weighed that risk differently, leading to some variations in word choice and how the key issues were framed.
While many bar statements did not use specific names, others were more pointed in referring to then-President Trump. For example, the HNBA statement called on him and on Congressional leaders to condemn the violence and uphold the Constitution. “We urge President Trump to use his final weeks in office to assist in the peaceful and safe transition of power—one of our nation's most revered and unique traditions,” the statement continued.
“Our word choice was very carefully considered,” Diaz-Yeager says. “We don't often call out individuals, [but] we felt that as a nation, we should set the example of a peaceful transition. We wanted to urge that that continue.”
At least one bar took the reference to the then-president a step further. New York State Bar Association President Scott Karson’s statement, issued Jan. 6, says, in part: “We call upon President Trump to stand up for the democracy he was sworn to uphold and to renounce his brazen and meritless attempts to disenfranchise millions of voters. He has damaged many Americans’ faith in our democratic institutions—all under the guise of protecting our election system despite offering no evidence of widespread voter fraud in over 60 court cases across the country.”
The question of whether to mention and how to characterize Trump’s actions was part of Karson’s thought process in planning the statement. “The circumstances were such that I think we can very easily and correctly and accurately attribute the events that day at least in part to his conduct,” he says, “so I thought it was appropriate to do so.”
Karson says he tries to make sure that NYSBA does not become partisan in its statements, but that he also believes it’s important to be clear when circumstances warrant.
“We would never expect everybody to agree with every word and every syllable we put together on a piece of paper,” says D’Arcy Kemnitz, executive director of the National LGBT Bar Association. Through careful consideration among the bar’s leaders, they drafted a statement about the riot that stressed what they saw as the key areas of focus.
The statement, issued on Jan. 7, says, in part: “We urge our elected officials to call for and actively pursue a peaceful transfer of power, the hallmark of our democracy, and to abandon the political demagoguery that led to yesterday’s abhorrent anarchy.
“When we as legal professionals were called to the bar, we took an oath to uphold the Constitution of the United States of America. Each of us should take that oath very seriously, and we expect all of our elected officials to do the same, including the many objectors to the results of the last election in Congress who are themselves attorneys.”
Far fewer mandatory bars made statements; for one of them, the State Bar of Arizona, drafting its statement came down to homing in on what the officers saw as the most essential issue, says SBA President Denis Fitzgibbons.
“We were all shaken by the fact that it appeared to us that this mob had intentionally gone to try to disrupt the working of Congress,” Fitzgibbons notes. “That’s what made us feel like we needed to respond. The legal profession is based on the rule of law, and if that is ever undermined, it erodes the profession that we hold near and dear to our heart.”
The statement, issued on Jan. 12, says, in part: “The State Bar of Arizona strongly condemns the use of violence as a means of disrupting or stopping the Congressional certification of the Electoral College vote. Not only because the constitution requires the certification, but because the process is an integral part to the rule of law.”