Ethics Matters

Opinion: Maybe We Are Public Buses

, The Connecticut Law Tribune

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Mark Dubois
Mark Dubois

David Atkins, who has a professional liability practice, lectures lawyers about the importance of choosing clients who are not so unrealistic, demanding, or nutty as to be surely never satisfied and the guaranteed source of grievances. He argues that we are not public buses and don't have to pick up clients on every corner. Good advice from a risk-management perspective, but maybe illegal from an anti-discrimination point of view.

A recent decision of the New Mexico Supreme Court in Elane Photography v. Vanesa Willock dealt with a photography studio that refused to photograph a same-sex commitment ceremony. The issue was whether the conduct, which was freely admitted and not in question, violated the New Mexico Human Rights Act. New Mexico, as do 20 or so other states, has a law that includes sexual orientation in its prohibitions on discrimination. The studio claimed that it had a constitutional right to limit the sale of its services to "traditional weddings" and that any law requiring it to offer the same services it offers to "traditional" spouses to others who may not be so "traditional" violated its rights to free speech and free expression under the First Amendment.

The case was a typical First Amendment free-for-all, with amici ranging from the ACLU to the Cato Institute, and with such notables as Professor Eugene Volokh (Google the "Volokh Conspiracy") filing briefs in support of the parties. The arguments would (and until the U.S. Supreme Court settles the issue, will continue to) make for a great moot court problem. Ultimately the photographer lost, as the court found that it was operating a public accommodation, i.e., a commercial enterprise offering goods or services to the public, and discrimination by such an actor was prohibited. Further, the law neither forced the photo studio to engage in speech it found repugnant nor to refrain from exercising its religion.

OK, it is pretty easy to find some rednecks acting badly and making law somewhere in the great unwashed wasteland of the Southwest, but what is the likelihood that this would happen here, and, even more, what are the odds that this analysis will be expanded to cover law offices? Pretty good it seems. Turns out the Americans with Disabilities Act actually includes law offices in its definition of public accommodations. And there has already been one case where a lawyer was found to have violated the public accommodations law in Massachusetts relating to the selection of clients.

In 2003, in Nathanson v. Massachusetts Commission Against Discrimination, a lawyer was subject to a cease and desist order concerning her choice of clients in divorce cases. According to the plaintiff's statement of facts, Judith Nathanson was an attorney in private practice in Lawrence, Mass. She had earned a law degree with the purpose of helping to advance the status of women in the legal system, and her legal work had been devoted to that goal. In her divorce practice, she represented only wives, and not husbands.

Nathanson had only a certain amount of time and energy to devote to her clients, and she felt it was essential to use her resources in the effort to redress social and legal wrongs done to women. The report from the Supreme Judicial Court's Gender Bias Study indicated that women were disadvantaged relative to men in access to the judicial system and treatment within that system. The Gender Bias Study, published in 1989, reinforced Nathanson's commitment to use her legal talents and time to promote more equal treatment of women in the judicial system. There was no evidence of Nathanson's improper animus towards men, as she has represented men in legal matters other than divorce proceedings against women.

Nathanson challenged the order, raising pretty much the same issues as did the photographer in Elane Photography, including that a law office was not a public accommodation, and that the law, as applied, impinged upon both her constitutional rights of free association and free speech. A single justice of the Massachusetts Supreme Judicial Court disagreed, finding that such a choice of clients amounted to illegal gender discrimination.

Do the rules really require us to take all comers on as clients? Probably not. Rule 1.7 recognizes that if a lawyer's personal interest results in a material limitation of her ability to zealously advocate, a recognized conflict may be found. And Rule 1.16 allows a lawyer to withdraw from a case if he finds the clients conduct unwise or repugnant. But it appears that every case, and every client, should be judged on its merits, and the law may find that a blanket rule against representing a particular class of client to be illegal discrimination.•

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