Heard and overheard

Heard and overheard

Salter, Leonard M

The question of whether a lawyer can refuse to take a case from a client because of other personal reasons has recently been determined in a decree by the Massachusetts Commission Against Discrimination (MCAD).

A lawyer with a reputation for aggressively representing women in divorce refused to accept a husband’s case involved in divorce proceedings. The lawyer advised the client that she did not accept male clients in divorces.

Shortly thereafter, the husband filed a complaint with the MCAD. The decision held that the attorney had discriminated against the man she had refused to represent as a client.

The MCAD ordered the attorney to pay the husband $5,000 in damages for “emotional distress.” Counsel is expected to appeal. Charles Ogletree, a professor at Harvard Law School, stated this is a very complicated case for the profession.

Chris Reidy, who interviewed the lawyer against whom the damages were assessed, claims the lawyer has devoted her legal career to eliminating gender bias in the legal system. She said that in order to function efficiently as a lawyer she must have a personal commitment to her client’s case. In divorce cases, the commitment is only to female clients. She testified that she had no difficulty in representing men in other areas of her legal practice.

On the other hand, MCAD Chairman Charles E. Walker ruled that “an attorney or law office holding itself out as open to the public may not reject a potential client solely on the basis of gender or some other protected class.”

Can Catholic lawyers refuse to represent doctors who perform abortions? Can a black attorney refuse to represent a white client accused of civil rights violations? At present, lawyers can refuse to represent clients because they don’t like them or find them obnoxious. Other lawyers say they will have to be more careful in rejecting clients following the ruling in the case under discussion. Monroe Inker, an outstanding divorce lawyer in Massachusetts, claims that if counsel cannot feel a commitment for the client and the cause, he should not accept the case. On the other hand, those members of the League who heard Professor Alan Dershowitz of Harvard Law School say at the New York meeting in November 1996, “I would represent Hitler if he did not have anyone else to represent him” certainly listened to some words of wisdom.’

It was recently announced by the Bureau of Labor Statistics that there would be 28% more lawyers by 2005. In 1994, there were 656,000 practicing lawyers. By 2005, there will be 839,000. Job growth in the legal profession, according to Richard Dooling, a lawyer and novelist, will be twice the average for all occupations.

Examine the facts in the contemporary world. The number of sexual harassment cases has increased by 300%. Environmental litigation has doubled. Why should the average person bash the most hated profession in the U.S.? Yet, considering the increasing flow of litigation that is approved by both state and federal authorities, criticism seems without rhyme or reason. Richard Dooling makes the simile to starting a war and later blaming the casualties on the growing number of morticians.

What we need in this context is a little bit of common sense and less witless prejudice. With more laws on the books, we need additional lawyers to interpret and re-interpret the old ones. New laws spawn litigation; lawyers are needed to handle the court processes and resolve the disputes encountered under the new and old laws. Dooling advances three suggestions as to the current lawyerbashing syndrome:

1) The hostility toward lawyers is really the displaced frustration with the limits of laws and lawsuits;

2) The average man/woman has an irrational faith in litigation;

3) We express our compassion and sympathy for our fellow citizens by new legislation, and then blame lawyers when the hopedfor improvement does not come about?

By way of countering the criticism against lawyers briefly abrumbated above, we cite the activity of the Vermont Law School’s South Royalton Legal Clinic’s establishment of the first legal clinic ever organized at Petrozavodsk University in the small state of Karelia, which borders on Finland. The clinic was founded in November 1995 and now handles family, privatization, military, pension, and employment law on a pro bono and sliding scale basis. Jim May, the clinic’s director, has volunteered all his time spent visiting, hosting, and supervising the Karelian clinic’s staff, by phone and electronic mail, in addition to semiannual trips to Russia.

As Suzanne Spencer points out, Americans have turned lawyer jokes into an art form. By contrast, Russia suffers from an acute shortage of attorneys. This is a legacy from centralized planning, which puts a damper on debate. With the achievement of both democracy and capitalism, legal disputes have proliferated; due to the lack of available lawyers or legal assistants, the poor and disadvantaged are bound to suffer. Having students in the clinic handling cases is most unusual for Russia, and it may take some time for the idea to be accepted. In spite of some very arduous working conditions, the Karelian clinic has established some new concepts and practices in Russia’s rapidly developing legal system.

A few members of the faculty of the Karelian clinic visited Vermont recently to talk to the Vermont Law School professors and visit two clinics in New Hampshire and Massachusetts. They were particularly interested in mediation and arbitration, which do not exist in Russia.

Both of these disciplines would reduce the amount of work challenging the courts in Russia. Several serious deficiencies in the system: No plea bargaining; no computers; judges do not have clerks; there is no precedential law. Considerable legal research must be done before a Russian case may be presented; it is impossible for the lawyer to know if the laws will be the same by the time the case goes to trial. It is reported that the clinic is at the cutting edge of legal practice in Russia. The older practitioners are seriously concerned about their futures in the profession of law.3

1. Chris Reidy, “Ruling Has Lawyers Cross-Examining Own Motives,” Boston Globe, March 9,1997.

2. Richard Dooling, “Too Many Lawyers? Wait Until 2005,” The New York Times, February 22, 1997.

3. Suzanne Spencer, “Vt. Lawyer Brings Legal Aid to Russia,” Boston Globe, February 23, 1997.

Copyright Commercial Law League of America Jul/Aug 1997

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