Conscience Rights and the Hypocrisy of (Some) Lawyers

The last several years have witnessed, a number of highly publicized cases that have pitted proponents of same-sex marriage against certain business owners who claimed a religious exemption to public accommodation laws. Florists, bakers, and photographers who declined to make their expressive talents available to celebrate and thereby promote a view of marriage at odds with their religious conscience, have been socially branded as haters and bigots, and legally penalized for their dissent.

The view championed by the advocates of public accommodation against those who dissent from the new understanding of marriage is that everyone in business must serve “all comers.” According to the ACLU (here) “Everyone is entitled to their own religious beliefs, but when you operate a business in the public sphere those beliefs do not give you a right to discriminate.” As the New Mexico Supreme Court concluded in Elane Photography, LLC v. Willock, 309 P.3d 53, 67 (N.M. 2013), “[i]f a commercial business wishes to offer its services to the public, thereby increasing its visibility to potential clients, it will be subject to the antidiscrimination provisions of the [state public accommodation law].”

But there is a conspicuous exception to this policy: the provision of legal services. Members of the legal profession enjoy a kind of conscience protection that exempts them from being forced to represent clients who seek to advance causes with which they disagree. As such, this conspicuous exception to the “all comers” policy involves the very advocates who argued against the bakers, florists, and photographers who sought to refrain from having their expressive talents utilized in support of same sex marriage.

This exceptionalism smacks of hypocrisy – a double standard whereby (some) lawyers are free to overcome the conscience objections of certain businesses even as they enjoy the conscience protection afforded by the law governing lawyers.

There is something similar to the notion of “public accommodation” in the legal profession. It is the idea that every client has a right to counsel. The right is not absolute (e.g. disqualification of counsel due to conflicts of interest), and there is no right to have counsel provided free of charge to those who cannot afford a lawyer (except in a criminal case). To encourage pro bono representation, the legal profession celebrates the lawyer who represents a client who cannot afford to pay, especially where the client’s cause is unpopular.

What the profession does not require of its members, however, is that specific lawyers agree to represent specific clients. Doing so may be regarded as laudatory. But, as Harvard’s David Wilkins explains in his article Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan? 63 Geo. Wash. L. Rev. 1030 (1995) (link here), “a lawyer is free to turn down any case for any reason, including the most banal (and undoubtedly most common) reason of all: the client can’t afford to pay the freight” (p. 1036).

As Wilkins also explains, there are two rationales behind the bar’s historic reluctance to require lawyers to represent specific clients in specific matters. The first rationale, found in MRPC 6.2, focuses on the attorney-client relationship and the quality of the legal representation provided. It states that a lawyer may refuse court appointed representation “where the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”

The second rationale “focuses on the lawyer’s moral right to control his or her own labor” (p. 1038). The thinking behind this rationale is that “[g]iven our society’s commitment to both individual autonomy and moral pluralism, it would be fundamentally wrong for the state (or the profession) to compel individuals to commit what they consider immoral acts for the sake of the greater good” (p. 1039). Indeed, “[a] lawyer who believes that it would be morally wrong to lend her professional skill to a particular cause ought not to be forced to do so just because the client can see some strategic advantage in the arrangement” (Id.).

Reflecting this rationale, MRPC 1.16 (b)(4) provides that a lawyer may withdrawal from a representation already begun where "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."

These conscience protections for lawyers are provided notwithstanding the ABA's assurance that "[a] lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities" MRPC 1.2(b).  One might have thought that this official declaration of lack of endorsement would be enough to protect the conscience rights lawyers, but the ABA plainly believes otherwise.

In addition to the professional standards promulgated by the ABA, the Supreme Court has recognized the expressive nature of legal representation. In In re Primus, 436 U.S. 412 (1978) the Court refused to apply a state legal ethics ban on attorney in-person solicitation recognizing that the lawyer’s actions were taken “to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain” (Id. at 422). In the same way, photographing, or providing floral arrangements, or baking a cake for a wedding celebration could, quite reasonably, be taken as expressing a certain moral or religious view with respect to marriage.

Some might argue that Primus is unhelpful in reaching this conclusion insofar as the majority opinion draws a strong distinction between a lawyer who takes a case in order to advance a particular moral or political position, and a lawyer who takes a case in order to earn a fee. Taking up this distinction, those who urge the application of public accommodation laws to florists, bakers, photographers and other vendors who refuse to participate in the celebration of a same-sex weddings are business owners seeking to make money. They are for-profit enterprises, not religious entities that exist to exude the faith of their owners.

This claim regarding In re Primus is deserving of several responses.

First, in his dissent in Primus, Justice Rehnquist expressed extreme doubt as to the ability of the state to draw a principled distinction between, on the one hand, a lawyer who proposes a commercial transaction and, on the other hand, a lawyer who engages in political expression through legal representation (Id. at 440-42). He was highly skeptical as to whether state authorities would be able to tell whether “a lawyer proceeds from political conviction rather than for pecuniary gain” (Id. at 445).

This skepticism is altogether understandable. Most people are motivated to engage in the kind of work they do for multiple reasons: because they enjoy the work itself and find it fulfilling; because it enables them to earn a good living; because they find it to be consonant with their moral, political, and religious views.

Indeed, work that enables a person to make a living may advance his or her religious beliefs in the world in a way that is far more powerful than simple proselytism. In the Catholic understanding of things, this is what it means to have a vocation – to make the love of Christ present in the world and thereby “work out your salvation in fear and trembling” (Phil. 2:12).

The multi-dimensional nature of work is significant. We are not required to subscribe to a Manichean worldview – championed by secularists – demanding that the reality of social life be compartmentalized into its preferred categories: the sacred and the profane, religious expression and business enterprise, vocation and occupation.

The hypocrisy of lawyers (at least some lawyers) when it comes to conscience protection, then, is this. Lawyers for the LGBT community are all too happy to say that "open for business" means that a vendor or service provider must serve “all comers” no matter how much he or she disagrees with the would-be customer politically, morally, or religiously, even where the business owner’s work necessarily involves his or her expressive talents in support of the view opposed.  Yet how many of those same lawyers would be willing to represent the opposite point of view? Would they not instead claim that demanding such legal representation would amount to a totalitarian misappropriation of their talents? An immoral demand that they use their creative, legal abilities in the service of a cause that goes against their conscience?

Nestled safely behind the walls of the legal profession, secure in their own rights of conscience, they plot the downfall of others.