Lawyers for White People?

Abstract

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against prospective clients because of race and sex. Yet, for all that, the exemption may be a reasonable drafting choice.

With narrow exceptions, current equal protection doctrine forbids race- and sex-conscious decision making, even for the purpose of remedying inequality. In effect it makes many anti-racist policies illegal. The triumph of this “anti-classification” approach has been widely criticized. But the insidious ways it affects civil rights regulation are often overlooked. The ABA exemption is a vivid example. Through the cracked anti-classification lens, forbidding discrimination in client selection might, for instance, make prioritizing African American plaintiffs in police violence claims an ethical violation. The exemption avoids that result, but only at the cost of exposing prospective clients to discriminatory exclusion.

The article proposes an alternative ethics rule that would prohibit refusing legal representation on the basis of stereotypes or stigmatic bias but allow lawyers to consider prospective clients’ race or sex in order to prioritize representing groups who have been disadvantaged in the legal system. Ironically, although that rule allows consideration of race or sex only in narrow, arguably benign, circumstances, it would face daunting constitutional challenges, while the ABA’s wide-open permission for discrimination would likely sail through judicial review. Critiques of anti-classification doctrine usually focus entirely on equal protection. In defending the proposed rule, however, the article shows that the demand for race- and sex-blind decision making also infects First Amendment analysis.

Keywords: legal theory, new legal realism, professional responsibility, anti-subordination, anti-racism, affirmative action, equal protection, viewpoint discrimination, First Amendment, civil rights, race discrimination, sex discrimination, public accommodations, legal ethics