OK for Lawyer to Refuse Case Against His Own Church? Maybe.

The New York State Bar Association recently wrote that a lawyer is under no obligation to accept every client—but the ethics committee stopped short of deciding if a particular refusal amounted to discrimination.

The lawyer at issue had been approached about representing a person who wished to sue a church for childhood sexual misconduct. The lawyer is the same religion as the institution against which the claim was to be made, and for that reason, the lawyer was unwilling to represent the claimant.

Hoping his decision would not violate New York’s anti-discrimination ethics rule, the lawyer submitted an inquiry to the Committee on Professional Ethics to decide the matter.

In its opinion, the committee detailed the long-standing principle 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.” It cited several cases that show the right to deny employment has been affirmed ad nauseam.  However, the committee acknowledged that this right is still subject to federal, state, and local anti-discrimination statutes. Rule 8.4(g) of the ABA Rules of Professional Conduct, for example, limits the 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. . . .’”

Accordingly, does refuse to represent someone who wishes to sue a church of your religion violates this rule? The committee wrote it lacked jurisdiction to say, instead of writing that it would not opine on whether the refusal at hand constituted “unlawful discrimination.”

Perhaps a body with jurisdiction may resolve this question one day. In the meantime, lawyers should be aware that their reasons for denying a case could still be scrutinized, and maybe even deemed discriminatory.

To read the full opinion, click here.

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