When Principled Representation Tests Antidiscrimination Law

Abstract

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