Ethics Opinion 1111
New York State Bar Association
Committee on Professional Ethics
Opinion 1111 (1/7/17)
Topic: Client representation; discrimination
Digest: A lawyer is under no obligation to accept every person who may wish to become a client unless the refusal to accept a representation amounts to unlawful discrimination.
1. A lawyer has been requested to represent a person desiring to bring a childhood sex abuse claim against a religious institution. The lawyer is of the same religion as the institution against which the claim is to be made. Because of this religious affiliation, the lawyer is unwilling to represent the claimant against the institution.
2. Is a lawyer ethically required to accept every request for representation?
3. Does the refusal to accept a representation under the facts of this inquiry amount to illegal discrimination?
Lawyer’s Freedom to Decide Which Clients to Represent
4. It has long been a principle of the practice of law that a “lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client . . .” EC 2-35 [formerly EC 2-26] of the former Code of Professional Responsibility (the “Code”). Although this language was not carried over to the current Rules of Professional Conduct (the “Rules”), the principle remains sound. The principle that lawyers have discretion to determine whether to accept a client has been “espoused so repeatedly and over such a long period of time that it has virtually reached the level of dogma.” Robert T. Begg, Revoking the Lawyer’s License to Discriminate in New York, 7 Geo. J. Legal Ethics 280, 280-81 (1993). See also Restatement (Third), The Law Governing Lawyers §14 cmt. b (Am. Law Inst. 2000) (“The client-lawyer relationship ordinarily is a consensual one. Lawyers generally are as free as other persons to decide with whom to deal, subject to generally applicable statutes such as those prohibiting certain kinds of discrimination”); Henry S. Drinker, Legal Ethics 139 (1953) (“[T]he lawyer may choose his own cases and for any reason or without reason may decline any employment which he does not fancy”); Canon 31, ABA Canons of Professional Ethics (1908) (“No lawyer is obliged to act either as advisor or advocate for every person who may wish to become his client. He has the right to decline employment.”); George Sharswood, An Essay on Professional Ethics 84 (5th ed. 1884) (stating, in one of the earliest American works on legal ethics, that a lawyer “has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion”).
5. We applied this principle in N.Y. State 833 (2009), where we held that a lawyer ethically was not required to respond to an unsolicited written request for representation sent by a person in prison.
Prohibition Against Unlawful Discrimination
6. However, a lawyer’s unfettered ethical right to decline a representation is subject to federal, state and local anti-discrimination statutes.
7. For example, N.Y. Exec. Law §296(2)(a) provides: “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation … because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof ….” In Cahill v. Rosa, 674 N.E.2d 274, 277 (N.Y. 1996), a case involving a dentist in private practice who refused to treat patients whom he suspected of being HIV positive, the Court of Appeals held that a dental practice is a “place of public accommodation” for purposes of the Executive Law. At least one scholar has argued that Cahill v. Rosa prohibits lawyers from discriminating as well. See Robert T. Begg, The Lawyer’s License to Discriminate Revoked: How a Dentist Put Teeth in New York’s Anti-Discrimination Disciplinary Rule, 64 Albany L. Rev 153 (2000) (discussing whether discrimination by New York lawyers is illegal after Cahill); but see G. Chin, Do You Really Want a Lawyer Who Doesn’t Want You?, 20 W. New Eng. L. Rev. 9 (1998) (arguing that a lawyer should not be required to undertake representation where the lawyer cannot provide zealous representation).
8. Rule 8.4(g) recognizes that anti-discrimination statutes may limit a lawyer’s freedom to decline representation, stating that a lawyer or law firm “shall not … unlawfully discriminate in the practice of law . . . on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. …” What constitutes “unlawful discrimination” within the meaning of Rule 8.4(g) is a question of law beyond the jurisdiction of this Committee. Consequently, we do not opine on whether a lawyer’s refusal to represent a prospective client in a suit against the lawyer’s own religious institution constitutes “unlawful discrimination.”
9. A lawyer is under no obligation to accept every person who may wish to become a client unless the refusal to accept a person amounts to unlawful discrimination. Whether a lawyer’s refusal to represent a particular client amounts to unlawful discrimination is a question of law beyond this Committee’s jurisdiction.