When Principled Representation Tests Antidiscrimination Law

16 Pages Posted: 18 Jan 2015

See all articles by Terri Day

Terri Day

Barry University - Dwayne O. Andreas School of Law

Scott L. Rogers

University of Miami - School of Law

Date Written: 1998


The decision in Stropnicky v. Nathanson completely disregarded the professional and personal considerations that drive the attorney’s decision whether or not to accept a case, focusing exclusively on societal concerns with eliminating discrimination. In doing so, it overlooked a long-lived deference accorded attorneys in the decision of whether to accept or decline a client’s case and the legitimate rationale underlying such deference. In deciding Stropnicky, a case of first impression in Massachusetts, the Commission entered a growing debate on whether lawyers and law firms are subject to public accommodation laws.

This article addresses how the Stropnicky decision intrudes into the important discretion historically accorded lawyers in deciding whether to represent a client. Part I of this article presents a concise review of the professional responsibility rules that pertain to the attorney’s duties and prerogatives in the selection of a client. Part II proposes an analytical framework for assessing the internal and external factors which underlie such discretion as articulated by the professional responsibility rules. Part III focuses on the ways in which laudable antidiscrimination principles may collide with the professionalism concerns that accord discretion to attorneys in deciding whether or not to represent a prospective client. Part IV applies the analytical framework set forth earlier in the article to the facts in Stropnicky. Finally, the conclusion suggests how antidiscrimination principles can coexist with ethical and professional considerations that support discretionary client selection decision-making without compromising either principle.

Keywords: Professional responsibility, Stropnicky v. Nathanson, discrimination, public accommodation laws, unconstitutional, 14th > Amendment, client selection, client refusal, antidiscrimination principles, gender, discretion, decision-making

Suggested Citation

Day, Terri and Rogers, Scott L., When Principled Representation Tests Antidiscrimination Law (1998). Western New England Law Review, Vol. 20, No. 1, 1998, Available at SSRN: https://ssrn.com/abstract=2551069

Terri Day (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

Scott L. Rogers

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

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