An attorney represents a defendant who has been found guilty of murder but whose punishment has not yet been determined. Due to the nature of the crime, the defendant is eligible for the death penalty under state law. During the penalty phase of the trial, the attorney argued that the death penalty was unconstitutional under the state constitution, even though the state supreme court had clearly determined twenty-five years ago that the death penalty was constitutional under the state constitution. In accordance with the defendant's wishes, the attorney argued that the death penalty had been imposed in an arbitrary and racially biased manner and thus violates the state constitution's prohibition against "cruel punishment." The attorney also pointed to the fact that other state supreme courts in a growing number of jurisdictions have held that the death penalty was unconstitutional under their own state constitutions for similar reasons. The court rejected the attorney's argument, citing the twenty-five-year-old state supreme court precedent. The attorney appealed to the state supreme court, which refused to hear the appeal. Is the attorney subject to discipline