Tuesday, March 12, 2013

"No Men Welcome"

Stephen Gillers, Regulation of Lawyers
"No Men Welcome"

Ms. Viola Purchase’s explanation that she does not represent men is probably not enough to excuse her from taking Mr. Mark Specher as a client. Without more, she will probably be sanctioned for discriminatory conduct based on gender. ABA Model Rule 1.16 sets forth the conditions in which a lawyer shall not represent or withdraw from representation of a client (Rule 1.16(a) is not relevant in this case). 
The comment for Rule 1.3 says, “A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Further, Rule 1.2(b) states that “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Ms. Purchase would argue that she does not feel comfortable representing men and does not want to advocate for positions that she believes could hurt wives and mothers generally. We would need more information about whether Mr. Specher “insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” Rule 1.16(b)(4). However, this rule provides a basis for withdrawal whereas in this case, Ms. Purchase seems to have refused to take Mr. Specher as a client simply based on his gender. Ms. Purchase might also argue that she would lack the diligence as required by Rule 1.3. This is probably an impermissible method to refuse taking male clients because other lawyers could then use that same reasoning to discriminate based on gender, race, sexual orientation, etc. 
A court would probably agree with Mark and find that a law office is “a place of public accommodation” (as in fact some state courts have previously held). A law office is an establishment that offers its services to the public. This might be even more so because as a profession, there should be a subordination of self-interest for the sake of the public good/justice. This also supports the argument that Ms. Purchase cannot discriminate against clients based on gender.
Finally, a good lawyer should be able to argue for both sides and act professionally – even if she does not agree with the client's views.

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