I have written a few times about the ABA’s adoption of a new Model Rule 8.4(g). One point that was brought up in the run-up to that rule actually finally being adopted was that some more than 20 jurisdictions already had an anti-discrimination rule in place in the black letter of their rules in one form or another.
One of those jurisdictions is New York, and the New York State Bar Association Committee on Professional Ethics issued an ethics opinion back in January of this year that says it addresses an interpretation of NY’s Rule 8.4(g) and whether it prohibits a lawyer from refusing to accept a representation because of a lawyer’s own religious affiliation.
Specifically, the scenario addressed in NYSBA Ethics Opinion 1111 is this:
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.
The opinion, ultimately, doesn’t really answer the question of whether refusal to accept under those facts would be illegal discrimination. Instead, the opinion first provides reassurance (at least of the rhetorical variety) that lawyers do not have any ethical obligation to accept every request for representation that they receive. Then, though, it mostly punts on how to reconcile that fact with the fact that lawyers cannot engage in conduct that would violate a federal, state, or local anti-discrimination statute. The opinion references New York case law which addresses certain kinds of professional services as being “place[s] of public accommodation” and directly admits that New York’s 8.4(g) contains language acknowledging that law could limit a lawyer’s ability to freely choose to decline a representation, but, despite the fact that the very rule itself that New York chose to adopt requires for its enforcement a conclusion about “unlawful discrimination,” just punts on whether the facts trigger such a conclusion.
At some level I get why the opinion goes that route as typically bodies providing ethics opinion have refrained from ruling on questions of law as being outside the scope of the rules. But it does seem to me like once you adopt a rule that envelops the need for such a legal determination into the enforcement of the rule, you lose some of the ability to credibly punt on such an issue.
For context, here is the language of the rule New York has in place providing that a lawyer shall not:
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding….
For what it is worth, you would think that the body issuing the opinion could — at least on this particular inquiry – have been able to comfortably say that since the facts presented did not even involve a lawyer turning down a potential client because of the potential client’s religious affiliation that it would be safe to say that it is highly, highly unlikely that a credible case of unlawful discrimination could be made out against the lawyer.
One thing that this opinion does help sharpen in terms of a salient point is that ABA Model Rule 8.4(g) appears to be a better drafted approach to this issue given its explicit terms protecting decisions on whether to take on the representation of a client. Unlike the New York version of the rule, the ABA Model — in addition to not having all the language about the need for a ruling by a tribunal to be a condition precedent in certain instances — includes this sentence in the black-letter of the rule: “This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.”
Jurisdictions adopting a version of Rule 8.4(g) with that kind of language would appear to be much better positioned to actually address questions like the one raised in the New York opinion by providing the lawyer with assurance about the ability to simply choose not to take on the representation of a client where doing so would require them to sue their own church.