Is a lawyer ethically required to accept every prospective client, and can refusing a case ever be unlawful discrimination?
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This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer was asked to represent a person bringing a childhood sex-abuse claim against a religious institution. The lawyer shares the institution's religion and, because of that affiliation, did not want to take the case. The inquiry asked whether a lawyer must accept every request for representation, and whether declining here would be illegal discrimination.
On the first question, the opinion confirms a long-standing principle: a lawyer "is under no obligation to act as advisor or advocate for every person who may wish to become a client." Although that language from the former Code's EC 2-35 was not carried into the current Rules, the committee found the principle remains sound, tracing it through the Restatement, early treatises, and the 1908 ABA Canons (¶ 4). The committee had applied it in N.Y. State 833, holding a lawyer need not respond to an unsolicited written request for representation from a prisoner (¶ 5).
On the second question, the committee explained that this freedom is subject to federal, state, and local anti-discrimination statutes (¶ 6). It cited N.Y. Executive Law § 296(2)(a) on places of public accommodation and Cahill v. Rosa, 674 N.E.2d 274 (N.Y. 1996), where the Court of Appeals held a dental practice is a place of public accommodation, noting scholarly debate over whether that reasoning reaches lawyers (¶ 7). Rule 8.4(g) recognizes that anti-discrimination statutes may limit the freedom to decline, providing that a lawyer "shall not ... unlawfully discriminate in the practice of law." But the committee held that what counts as "unlawful discrimination" under Rule 8.4(g) is a question of law beyond its jurisdiction, so it did not opine on whether refusing to sue one's own religious institution is unlawful (¶ 8-9).
In practice
The opinion holds two things. First, as a baseline, a lawyer retains broad discretion to decline any prospective client; nothing in the Rules requires accepting every request. Second, Rule 8.4(g) makes that discretion subject to anti-discrimination law: a refusal that amounts to unlawful discrimination is prohibited. The committee did not resolve whether the specific refusal in the inquiry was unlawful, because whether conduct is "unlawful discrimination" is a legal question outside its jurisdiction.
Common questions
Q: Does a New York lawyer have to take every case offered?
A: No. The opinion reaffirms the principle that a lawyer is under no obligation to advise or advocate for every person who wishes to become a client (¶ 4, ¶ 9).
Q: Can declining a case ever violate the ethics rules?
A: Yes. Rule 8.4(g) bars unlawfully discriminating in the practice of law, so a refusal that constitutes unlawful discrimination is prohibited (¶ 8).
Q: Did the committee decide whether this refusal was unlawful?
A: No. It held that whether a refusal is "unlawful discrimination" is a question of law beyond the committee's jurisdiction, and declined to opine (¶ 8-9).
Background and rules framework
The opinion interprets New York Rule 8.4(g) (misconduct; the New York analog to ABA Model Rule 8.4(g)), which prohibits unlawfully discriminating in the practice of law on the listed protected bases. The committee paired the rule with the background principle of lawyer discretion to decline representation and with anti-discrimination statutes such as N.Y. Executive Law § 296, while treating the ultimate legality question as outside its jurisdiction.
Citations and references
Rules of Professional Conduct:
- MR 8.4 / NY RPC 8.4(g) (misconduct; unlawful discrimination in the practice of law)
Statutes:
- N.Y. Executive Law § 296(2)(a) (unlawful discriminatory practices; places of public accommodation)
Cases:
- Cahill v. Rosa, 674 N.E.2d 274 (N.Y. 1996), a private practice can be a place of public accommodation
Other opinions cited:
- N.Y. State 833 (2009): a lawyer need not respond to an unsolicited request for representation
See also
- ABA Formal Op. 493: Model Rule 8.4(g) on harassment and discrimination
- NY State Bar Op. 1126: Confidentiality owed to a prospective client
Source
- Landing page: https://nysba.org/ethics-opinion-1111/
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