Lawyer Discrimination Against Clients: Outright Rejection – No; Limitations on Issues and Arguments – Yes

Abstract

This 1998 article is part of a symposium on the issues raised by the case of Stropnicky v. Nathanson, a Massachusetts case in which a male client sued a female attorney, alleging sex discrimination in her refusal to represent him in his divorce proceeding.

The article discusses the meaning of “public discrimination” – that is, discrimination in the “public sphere” of social and economic life – and “private discrimination” – discrimination by individuals in their private decisions, such as whom to befriend or to marry, and what books to read and movies to watch. While the line between the public and private spheres is contingent, socially constructed and thus not always clear, the conduct of lawyers in the practice of law is unquestionably in the public sphere and thus governed by discrimination law. The article points out the anomalous fact that lawyers are the only professional that do not prohibit discrimination in their professional code of conduct and that laws against discrimination require other economic actors – employers, bankers, landlords, electrician – to control their discriminatory impulses and not discriminate. It is not too much to require lawyers to obey these same laws.

However, the fact that lawyers are governed by discrimination does not mean that all discriminatory acts by lawyers will constitute unlawful discrimination. Our society does not impose a blanket prohibition against all discrimination. Other goals, such as privacy, autonomy or efficiency, sometimes trump the opposition to discrimination, and most discrimination statutes recognize these competing interests by providing exemptions or affirmative defenses to discrimination in very narrowly drawn circumstances, such as the bona fide occupational qualification defense in employment law or the “Mrs. Murphy” exemption in fair housing laws.

The article discusses a hypothetical legislative deliberation on the problem of lawyer discrimination and proposes a statute, prohibiting discrimination by lawyers but recognizing a limited affirmative defense, if a lawyer can prove that discrimination is necessary to her practice of law and there is no less discriminatory way to prove, or if the prohibition of discrimination would violate the constitutional right of a lawyer or client. It then applies that statute to a number of different scenarios and comes to the conclusion that lawyers can use race, sex or some other prohibited characteristic as a factor in selecting the types of cases that they will specialize in (divorce cases; civil rights cases; tax cases), the side that they will represent in such cases (only the party seeking the divorce; or only the plaintiff in civil rights cases), and the issues or arguments that they will or will not raise. However, it also concludes that there is no basis for outright racial or sexual discrimination in client selection.

Keywords: Discrimination, legal ethics, lawyer-client, attorney-client, disparate treatment, overt discrimination, stereotyping, freedom of association

JEL Classification: B10, J7