The lawyer's license to discriminate revoked: how a dentist put teeth in New York's anti-discrimination disciplinary rule.

• Author: Begg, Robert T.

1. INTRODUCTION

   Many of the legal profession's rules of ethics are premised on legal obligations. Thus, for example, a lawyer in New York State may be disciplined for engaging in illegal conduct adversely reflecting on the "lawyer's honesty, trustworthiness or fitness as a lawyer,"(1) for charging an illegal fee,(2) for concealing or failing to disclose "that which the lawyer is required by law to reveal,"(3) for counseling or assisting a client in conduct that the lawyer knows is illegal or fraudulent,(4) or for suppressing evidence that the lawyer has a legal obligation to reveal.(5) The American Bar Association's Model Rules of Professional Conduct have similar law-based ethical provisions.(6)

   Since ethical obligations such as these are premised on the law of the jurisdiction, an attorney's ethical responsibilities are subject to change as the law of the jurisdiction evolves. At times, such changes in legal standards may have an unforeseen, yet significant, effect upon traditional practices and assumptions concerning appropriate ethical conduct, even though they may have resulted from changes in the law not specifically targeted at the legal profession.

   The continuing expansion of anti-discrimination law provides an excellent example of how change in the law affects lawyers' ethical obligations and prerogatives. As the rights of individuals have expanded under federal and state civil rights statutes, what has been the effect on lawyers' traditional prerogative to exercise absolute discretion in the selection of clients?

   Historically, a lawyer in New York could discriminate in his or her selection of clients based upon the client's race, creed, gender, or any other suspect criteria without fear of reprisal or sanction.(7) This traditional prerogative of lawyers to use any criteria in selecting or rejecting clients is illustrated in the following quotation by a noted legal ethicist:

   [A] lawyer may refuse to represent a client for any reason at all--because the client cannot pay the lawyer's demanded fee; because the client is not of the lawyer's race or socioeconomic status; because the client is weird or not, tall or short, thin or fat, moral or immoral.(8) This standard of absolute discretion, which finds support in lawyers' ethics codes(9) and in respected legal treatises,(10) has been "espoused so repeatedly and over such a long period of time that it has virtually reached the level of dogma."(11)

   Yet, how does a lawyer's right to reject clients for any reason, including an improper discriminatory one, square with New York(12) and federal(13) anti-discrimination statutes and New York's anti-discrimination disciplinary rule,(14) which appear facially to prohibit certain types of discriminatory conduct? Several arguments support the traditional view that lawyers need absolute discretion in client selection and, therefore, lawyers must in this respect be "above the law" when it comes to discrimination in the selection of clients.(15) These arguments include:

   1) Even if lawyers, in fact, invidiously discriminate in their selection of clients, such discrimination does not violate existing law;

   2) Lawyers are so sophisticated in their knowledge of law and the legal system that their discrimination in the selection of clients is not likely to be detected or, if detected, is not likely to be actionable due to the difficulty of proving motive;

   3) Forcing lawyers to represent particular clients against their will may violate the lawyers' First Amendment rights of freedom of speech and association;

   4) The personal and professional autonomy of a lawyer is so essential to the effective and fair administration of justice that the need for absolute discretion in the selection of clients offsets the public policies underlying anti-discrimination statutes;

   5) It is not in the "client's best interests" to force a lawyer to represent a potential client when the lawyer has strong feelings against doing so;

   6) Under the separation of powers doctrine, legislatures may not regulate the practice of law as that authority is reserved to or inherent in the judiciary.

   This article tests the validity of these arguments in New York in light of developments over the past decade. The thesis is that the conjunction of a unique anti-discrimination disciplinary rule, a judicial decision by the state's highest court concerning a dentist, and two court rules meant to inform clients of their rights have led to a significant alteration of the ethical landscape in New York concerning invidious discrimination by lawyers in the selection of clients. The effect is that the lawyer's traditional right or license to discriminate invidiously in the selection of clients has now been revoked in New York. An appreciation of the history and significance of New York's anti-discrimination disciplinary rule and statutes is essential to the development of this thesis.

2. NEW YORK'S ANTI-DISCRIMINATION ETHICS RULES

   The New York courts and the New York State Bar Association added an anti-discrimination Disciplinary Rule to the New York Lawyer's Code of Professional Responsibility in 1990.(16) The anti-discrimination rule in DR 1-102(a)(6) states:

   A lawyer or law firm shall not:

   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.(17) Several other jurisdictions have adopted anti-bias provisions in their ethics codes,(18) but DR 1-102(a)(6) is unique in its terminology, application, and scope.(19) The disciplinary rule is quite broad, prohibiting discrimination based upon the same suspect criteria that are listed in New York's Human Rights Law.(20) The rule is unusual in that, before coming to the disciplinary system, it requires that complaints of discrimination initially be brought in a timely fashion before a tribunal with appropriate jurisdiction.(21) A tribunal's finding of discrimination constitutes prima facie evidence of a violation of the disciplinary rule and may lead to imposition of a sanction upon the offending attorney.(22) It is also noteworthy that the disciplinary rule is unique in that it applies to both lawyers and law firms.(23)

   The key term in the disciplinary rule is the word "unlawfully." For the disciplinary rule to be applicable, a lawyer must have violated some law prohibiting discrimination based on the criteria listed in the rule, such as race or sex. This creates the interrelationship between the statutory rule and the ethics rule. If the lawyer's actions are unlawful the lawyer may be penalized as a citizen under the statute(24) and then also be subject to a variety of other sanctions as a lawyer in a separate proceeding under the disciplinary rule.(25) Conversely, if the lawyer is not in violation of a statute, there is no violation of the disciplinary rule no matter how egregious the discriminatory conduct may have been.(26)

   Also important to the applicability of DR 1-102(a)(6) is the requirement that the discrimination take place "in the practice of law." While the phrase "in the practice of law" is not defined in the Disciplinary Rule or elsewhere in the Code of Professional Responsibility, it is clear that the client selection process is an essential, heavily regulated, and financially important component of the practice of law.(27) The courts' adoption of such broad language in DR 1-102(a)(6) puts lawyers on notice that they may not "unlawfully" discriminate in any aspect of the practice of law, including client selection.(28)

   Significantly, the courts have also set in place mechanisms meant to reinforce this message and to insure that clients are aware that lawyers may not refuse to represent them for invidious reasons. These mechanisms take the form of a Disciplinary Rule adopted in 1993 to deal with problems associated with lawyers in domestic relations matters and two court rules meant to inform clients and potential clients of their rights.(29) DR 2-106(f) requires lawyers in domestic relations matters to provide prospective clients with a "Statement of Client's Rights and Responsibilities."(30) Listed among these rights is the following:

   "An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability."(31) A second subsequently adopted court rule containing a similar anti-discrimination provision mandates that every attorney with a law office in the state post a "Statement of Client's Rights" in his or her office, in a manner visible to clients.(32) The result is that all potential clients visiting a lawyer's office in New York are now theoretically placed on notice that lawyers cannot discriminate in client selection.

   These two statements and DR 1-102(a)(6) clearly show that the judiciary in New York views certain types of discrimination as inappropriate when a lawyer is selecting clients, yet the interplay of these statements and DR 1-102(a)(6) is not completely consistent, since they were not adopted simultaneously or in a coherent package. Significantly, the word "unlawful" does not appear in either statement but is a key element in DR 1-102(a)(6). Another important distinction is that while the court rules are the most forceful and clear statements yet made by the...