Selecting clients: are you free to choose?

Law practice often involves ideology, so lawyers should be allowed to distinguish between clients they wish to represent and those they don't.

English banisters claim to follow a "cab rank rule."(1) If they are to be believed (the rule seems rather sieve-like),(2) a barrister feels bound to accept any client who seeks legal services. No questions asked. (No questions are asked, that is, beyond the question asked by the barrister's clerk about the client's ability to pay whatever fee the clerk chooses to set.)

Is there a cab rank rule enforced against American lawyers? Until recently, most lawyers and scholars would have said no. Now we can't be so sure.

In a decision sure to be debated long into the future, the Massachusetts Commission Against Discrimination recently held that a cab rank rule of a peculiar kind prohibited a lawyer from choosing clients on the basis of their gender.(3) According to the commission, a woman lawyer who says flatly to a man that she only represents women in contested divorce proceedings violates the Massachusetts law prohibiting gender discrimination in a "place" (the lawyer's office) of "public accommodation" (the publicly advertised practice of law).(4)

While the case bristles with issues--and with surprises for most lawyers, I venture to guess--it is better understood if we start with the facts.

Lawyer Judith Nathanson practices in a small law firm in Lawrence, Massachusetts. Like most lawyers, she solicits law business (lawfully). She advertises in the phone book and local newspapers and has a sign hanging outside her office. She also lists herself with several referral agencies, including two women's advocacy centers.

Nathanson has made a speciality of aggressive representation of women in divorce actions. She does so in a committed effort to eliminate gender bias in the court system, which bar committees everywhere (including Massachusetts) have identified as pervasive. She also believes in the justice of the cause of her women clients and is deeply committed to their struggle for court recognition of their value as homemakers and their precarious position because of limited future earning potential.

Given Nathanson's point of view, it is little wonder that she had her secretary turn away Joseph Stropnicky, a prospective divorce client, when he walked in the door. He insisted on speaking with Nathanson personally, but Nathanson stuck to her "women only" policy, even after he told her that his situation was that traditionally associated with women in divorces.

Stropnicky's divorce was ending 18 years of a nontraditional marriage characterized by reversal of stereotypes. He had worked in the early years of the marriage to support himself and his wife while she completed medical school and set up her practice. Later, he stayed home with their children as their primary caregiver and homemaker. When the younger child was three years old, Stropnicky went back to school and got a teaching certificate. At the time of his divorce, he was making 10 percent of his doctor-wife's salary.

Nathanson is guilty of gender discrimination, said the commission. It held that a "women only" policy for selecting divorce clients is unlawful. Nathanson was ordered to pay Stropnicky $5,000 in damages for emotional distress.

Reasons for reversal

Was the commission on firm ground? There are three reasons for thinking that a reviewing court would reverse.

First it should count for something that Nathanson's actions were entirely proper under the lawyer code in Massachusetts and every other state. In this respect, as in so many others, America is not England. There has never been a lawyer code rule requiring that an American lawyer represent all clients who find their way to the lawyer's door and are prepared to pay the lawyer's fee. Under the professional codes, any lawyer may refuse to represent any client for good reasons, for bad reasons, or for no reasons.(5)

That isn't yahoo regulation. It instead reflects the principle that the client-lawyer relationship is both intensely personal and a reflection of how the lawyer wishes to project herself both to the outside world and to the world of other lawyers, judges, and clients. There's probably also a feeling that, just as lawyers are free to represent anyone they wish--no matter how unpopular or unpleasant--they are also free to refuse to represent anyone they wish, even for entirely personal reasons.

Certainly, many lawyers practice that way. Whether it's good or bad (it's both), labor lawyers tend to represent only management, or only labor, and hardly ever both. Personal injury lawyers who represent plaintiffs wouldn't be caught dead defending an insurance company, and the same is true in reverse with tort defense counsel. It's probably thought to be good business.

In addition, a lawyer learns more quickly and can delve more deeply by representing only one side. The lawyer also avoids any possibility of being blindsided by so-called issue conflicts.(6) And it probably makes clients feel much more comfortable and trusting when they confide in their lawyers and listen to their advice.

So, even if Nathanson didn't have a highly principled reason for representing only women, she wouldn't have been the first lawyer to have chosen sides in private-party litigation and undertaken to represent, always, the same side.

But for Nathanson, representing only women was more than just good business. She represented only women divorce clients as a matter of principle. And that leads to the second and third problems with the Stropnicky decision.

The second problem is that the decision necessarily thrusts a government agency into the business of telling lawyers whom they must represent. And even if a government body ought to take on that task, the one arm of government that has traditionally regulated lawyers, including in Massachusetts,(7) is the judiciary, not the administrative bureaucracy.

The point isn't that courts are less bureaucratic than an agency. They may be equally so in some matters. Instead, the point is a grander one: The Massachusetts state constitution separates powers among the three branches of government in ways that are largely traditional and possibly arbitrary, but highly important in a constitutionally ordered system of checks and balances.

The traditional claim of courts is that they, and only they, are constitutionally empowered to regulate lawyers. The state legislature and administrative agencies have to keep their hands off lawyers.

Many attorneys would object that statutes in many states regulate lawyers--that surely there is no such robust doctrine as the one I've described. Yet in the large majority of states, claims of exclusive judicial power coexist right alongside extensive statutory regulation of lawyers.

Some courts explain that the statutes are permitted to operate only by judicial permission. In the spirit of judicial "comity," the legislation is tolerated if it is consistent with the court's overall objectives and standards for lawyer regulation.

But comity is often not extended. Decisions abound in which state supreme courts have struck down statutes or administrative regulations that purport to regulate lawyers, and on no more sophisticated an argument than the flat-footed claim that the state's supreme court alone has that power.(8)

The claim probably serves some selfish ends of lawyers, shielding them from unwanted legislative and administrative supervision. But it also serves to protect lawyers against insidious political pressures often found in the other branches and, we hope, missing or at least diminished in the judicial branch.

The "inherent powers" claim of courts, to be sure, has been overblown in the past.(9) What makes it any more compelling in Nathanson's case? The answer takes us to the third troubling weakness in the commission's ruling.

Constitutional claim

Nathanson argued, among other things, that she had a constitutional right to limit her practice to particular causes and clients. But, applying a rule that other administrative agencies follow as well,(10) the commission refused to listen to the argument on the ground that as a lowly administrative agency it could not strike down as unconstitutional the legislation that it was created to enforce. The question of constitutionality, however, is a live issue on appeal and should give any court pause. Nathanson's constitutional claim strikes a resonant chord.

At one time the shoe was on the other foot. Organizations like the NAACP were fighting hard against what they rightly perceived as discrimination. The then-establishment in several southern states, in their efforts to beat back attacks on discrimination, went after the NAACP. The states attacked under several theories--unauthorized practice of law, champerty, stirring up litigation, and the like. The common theme was that the state had the power to stop an organization like the NAACP under its general police powers.

When the cases got to the U.S. Supreme Court, it was the states and not the NAACP that were stopped in their tracks. In a series of rulings, the Court held that members of an advocacy organization like the NAACP have a constitutional right to assemble to gain collective legal services and a constitutional right of free expression to petition government for the redress of grievances. In NAACP v. Button, the Court held that any strong-armed attempt by a state to stop these activities by interfering with the client-lawyer relationship between the organization's members and its allied lawyers denied the members their right to due process.(11) The Court quickly extended the ruling to protect union members whose unions steered them to certain lawyers to provide legal assistance.(12)

Button and the later cases were, to be sure, all decisions of the Warren Court. But, despite the blather one hears and reads, most Warren Court decisions have not been overturned by the present, more conservative Court. Among the conservative values of the Rehnquist Court, apparently, is an old-fashioned belief in stare decisis.

If a court were so disposed, it could note an arguably important difference between the Button line of decisions and Nathanson's case. It could be claimed that Nathanson acted largely on her own and without a supporting organization, such as the NAACP--or, more likely, the National Organization for Women. One possible response is that Nathanson had listed herself with a number of women's advocacy organizations for referrals. Is that sufficient to permit her to assert the constitutional rights of the members of those organizations to representation free of government constraints?

The parallel to Button and its progeny seems compelling. The mission of the NAACP would be weakened if the organization and its allied lawyers could be forced by a state agency to take up the cudgel of a white person who claimed discrimination in his or her application to a southern state law school. At the very least, it would mean a dilution of the organization's finite number of available lawyer hours. It would also confuse the ideological message that the NAACP has chosen for itself.

Similarly, being forced to represent men in divorce cases would, Nathanson suggested, weaken her committed mission of assisting women in these actions. For her to take the time to represent a man would mean less time to represent women. For her to argue a man's cause would risk diluting the strength of her advocacy for women.(13)

To be sure, courts have consistently rejected freedom of association as a defense to a charge of discrimination.(14) But Nathanson's stance may be significantly different. She seeks, through her exclusive representation of women in divorce and custody cases, to make expressive and associational statements that are clear and direct, rather than suspiciously pretextual.

It is also true that courts have claimed the power to compel lawyers to represent clients in court-appointed counsel situations.(15) But no court has ever attempted to "appoint" a lawyer to represent a potentially large number of clients over the entire course of the lawyer's career, despite the lawyer's good faith assertion of an ideological reason for refusing to do so. Moreover, Nathanson was hardly the last lawyer in town so that Stropnicky's need for counsel could be asserted as support for compelling Nathanson to represent him. There were doubtless many other lawyers willing and able to provide the representation he sought.

The constitutional argument seems weighty, but in the end accepting it is unnecessary in reaching the right result. Even more compelling, to go back for a moment to the inherent powers debate, is to consider the important role of the judicial branch in ensuring access to the courts for all, including women, through their chosen representatives.

It would be fully consistent with an appropriately restrained version of the inherent powers doctrine for courts to rule in Nathanson's favor. In reviewing the commission's order, the Massachusetts court should hold that an attempt by a government organization to interfere with a lawyer's principled decision whom to represent cuts too closely both to constitutional values and to the role of courts as adjudicators of litigated disputes.

In the end, it appears that the commission was conscious of the force of these arguments. In a shamefully bureaucratic twist, the commission insisted that it did "not intend to regulate the areas of practice an attorney may choose to pursue." Nor, the commission said, did it "intend to undermine those professional considerations attorneys traditionally rely upon in making business decisions."(16)

It appears that the commission was prepared to concede that Nathanson was within her rights in rejecting Stropnicky as a client. But, the commission implied, she and her secretary just said the wrong thing when they turned Stropnicky away:

This ruling does not impinge upon

Nathanson's right to devote her practice

to furthering the cause of women as she

defines that cause. Had Nathanson

concluded that the issues raised by

[Stropnicky's] divorce action were not

consistent with her specialty and area of

interest and rejected [him] on that basis,

rather than solely because he is a man,

the focus of this inquiry would be

different.(17)

In other words, a lawyer in Massachusetts can refuse to represent men in divorce actions. But the discriminating lawyer has to be careful and say that representing the particular (male) prospective client is "not consistent with my speciality and area of interest." Well-advised lawyers in Massachusetts will now always be sure to send no-representation letters to spurned prospective clients and recite the vacuous but magical formula as their reason for refusing to represent.

The penalty for failing to recite correctly is the risk of being ordered to pay a $5,000 damages award and being branded a violator of the state's antidiscrimination laws. It is difficult to see how such word games advance the cause of antidiscrimination policy in Massachusetts.

Law practice is different

The absurdity of the commission's approach is illustrated if one ponders what would have been the result if Nathanson had been accused of gender discrimination in selling groceries instead of in providing legal services. Could grocer Nathanson turn away Stropnicky and all other mates from her store on the ground that she chose not to sell to them because doing so was "not consistent with my speciality and area of interest"? Clearly, the formula works only in certain limited areas, perhaps just in the area of providing legal services to clients.

The honest decision of the commission would have recognized that Nathanson, because she is a lawyer providing advocacy services that directly involve ideology, is entitled to distinguish among her prospective clients based on their gender. Law practice is different from selling groceries and from selling medical and most other services. Ideology has a direct link to decisions about which clients to represent. To that limited extent, these decisions ought to be excepted from the otherwise broad reach of antidiscrimination legislation.

Would that result in Stropnicky have given lawyers free rein to discriminate on the grounds of, say, race or gender when practicing law? Clearly not. A lawyer who charged African American clients twice what white clients were charged could hardly defend that billing practice as based on ideology. (The lawyer might attempt to defend it on the ideology of racial discrimination, but that's against the law.)

A lawyer who refused to represent white clients in personal injury actions--for no reason having anything to do with rationally limiting his or her practice on ideological grounds--would similarly discriminate unlawfully. Candidly recognizing Nathanson's right to limit her practice to women would hardly open the floodgates to widespread racial and gender discrimination in providing legal services.

Whether Stropnicky or a decision like it will be upheld by a court on appeal is still an open question.(18) Whether it will be followed in other states seems dubious. In Massachusetts and elsewhere, the commission's decision should be regarded as a regrettable and pointless detour on the road to a more just society.

Notes

(1.) See GENERAL COUNCIL OF THE BAR, CODE OF CONDUCT OF THE BAR OF ENGLAND AND WALES RULE 203 (1990).

(2.) E.g., id. Rules 501-03; JOHN A. FLOOD, BARRISTERS' CLERKS: THE LAW'S MIDDLEMEN 71-73(1983).

(3.) Stropnicky v. Nathanson, No. 91-BPA-0061 (Mass. Comm'n Against Discrimination Feb. 25, 1997).

(4.) The decision noted that the question whether a law office is a place of public accommodation was one of first impression. Id. at 7. The commission drew comfort from prior holdings that the offices of doctors and dentists were. The commission also noted the several ways in which Nathanson had advertised to the general public.

(5.) See Charles W. Wolfram, A Lawyer's Duty to Represent Clients, Repugnant and Otherwise, in THE GOOD LAWYER 214 (David Luban ed., 1983). There is an exception, of sorts, for court-appointed cases. But Stropnicky found his own way to Nathanson's office.

(6.) See generally RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS [sections] 209 cmt. f (Proposed Final Draft No. 1, 1996); John S. Dzienkowski, Positional Conflicts of Interest, 71 TEX. L. REV. 457 (1993).

(7.) See, e.g., Marino v. Tagaris, 480 N.E.2d 286 (Mass. 1985) (court, as ultimate authority over conduct of lawyers, will inquire more closely than in typical arbitration case to ensure fairness to client of fee-arbitration proceeding).

(8.) See, e.g., Washington State Bar Ass'n v. State, 890 P.2d 1047, 1051 (Wash. 1995); see also Lloyd v. Fishinger, 605 A.2d 1193, 1195 (Pa. 1992).

(9.) See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS [sections] 2.2.3 (1986).

(10.) E.g., Mathews v. Eldridge, 424 U.S. 319, 30 (1976); Weinberger v. Salfi, 422 U.S. 749, 767 (1975). These cases are frequently cited for the proposition that, because an administrative agency is incapable of assessing the constitutionality of legislation it is to enforce, the doctrine of exhaustion of remedies does not require resort to the agency before coming to court with a constitutional challenge. E.g., Califano v. Sanders, 430 U.S. 99, 109 (1977). See generally 2 KENNETH CULP DAVIS & RICHARD J. PIERCE JR., ADMINISTRATIVE LAW TREATISE [sections] 15.5, at 331 (3d ed. 1994).

(11.) 371 U.S. 415 (1963).

(12.) United Transp. Union v. State Bar of Michigan, 401 U.S. 576 (1971); United Mine Workers of Am. v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); Brotherhood of R.R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964). See generally WOLFRAM, supra note 9, at [sections] 16.5.2.

(13.) Whether prospective-client Stropnicky had this in mind or not, a common motivation of men who seek out women divorce lawyers is to have a member of the opposite gender front and thus mask, their male-oriented position in the lawsuit. Realizing that, Nathanson well might have decided to reserve her clout for those whose cause she considered personally more compelling.

(14.) See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (rejecting law firm's argument that freedom of association precluded application of federal antidiscrimination laws to firm's decision to reject woman associate as partner).

(15.) See, e.g., Barnard v. Thorstenn, 489 U.S. 546, 557 (1989) (dicta); see also Supreme Court v. Piper, 470 U.S. 274,287 (1985) (dicta).

(16.) Stropnicky, No. 91-BPA-0061, at 10-11.

(17.) Id. at 11.

(18.) At press time, Nathanson's appeal was pending before the full commission.

Charles W. Wolfram is the Charles Frank Reavis Sr. professor of law at Cornell Law School, Ithaca, New York. He is the chief reporter for the American Law Institute Restatement of the Law Governing Lawyers. Nothing stated here should be regarded as necessarily reflecting the position of the institute.