Any civil rights law practice requires lawyers to embrace what we have in common and to reconcile our differences.  No civil rights practice can operate without a recognition of certain fundamental principles of freedom and equality, and every lawyer must be willing to put aside, to the extent possible, his or her own prejudices, biases, and predilections, and yet remain true to his or her convictions.

Lawyers, like any other service provider, naturally run the risk of alienating potential clients on the basis of their personal beliefs or politics.  Conversely, despite the commonplace that everyone deserves representation, lawyers are allowed to choose their clients and may not want to represent someone whose principles or conduct they find repugnant.  In each case, lawyers and clients are exercising their clear prerogatives — clients are free to choose their lawyers, and lawyers are free to choose their clients. Overall, this is a good thing, particularly in litigation, where lawyers and clients are in a sense entering into what could be a long-term committed relationship (although clients are always free to fire their lawyers).

Of course, lawyers are also prohibited by the Bar from entering into relationships that present actual or potential conflicts of interest — such as representing both opposing parties in a lawsuit (ABA Model Rule of Prof’l Conduct 1.7(a)(1), (b)(3), Comment 17) — although in some instances they may do so if both parties give informed consent in writing, such as when the lawyer represents on party in one lawsuit and is suing that party in another lawsuit. ABA Model Rule of Prof’l Conduct 1.7(d), Comment 6.

This hardly means, however, that lawyers’ views on all issues must be identical to those of their clients — if this were the case, there would presumably be no such thing as criminal defense lawyers.  At the same time, one would expect any lawyer, and especially a civil rights lawyer, to embrace certain fundamental principles regardless of divergent backgrounds or views on other issues. Indeed, above all, it is the duty of lawyers to uphold and advance the law. See, e.g. ABA Model Rule of Prof’l Conduct 3.1.

Of course, some of the most fundamental principles of American law are the freedoms set forth in the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const., amend. I. Beyond these fundamental principles of freedom of conscience, freedom of expression, freedom of assembly, and freedom to ask the government for redress, the Constitution also embodies a second great principle of equality.

Equal protection of the the law is one example of this principle, enshrined in the Fourteenth Amendment to the Constitution. U.S. Const., amend. XIV, § 1. Neither the Federal Government nor the state governments may treat people differently based on such protected classes as race or sex. See, e.g., Brown v. Board of Education, 344 U.S. 1 (1952); United States v. Virginia, 518 U.S. 515 (1996).  Such protections are further enhanced and extended to the private sector by the historic Civil Rights Act of 1964. This Act prohibits discrimination on the bases of such protected classes as race, color, sex, national origin, and religion, with some narrow exceptions (e.g. religion can be a bona fide qualification for a priest). The Act's broad coverage includes employment (42 U.S.C. § 2000e et seq.); public accommodation (42 U.S.C. § 2000a et seq.); housing (as amended by the Fair Housing Act (42 U.S.C. § U.S.C. et seq.)), and any program receiving federal assistance (42 U.S.C. § 2000d et seq.). Americans with disabilities are protected and must be accommodated under the Americans with Disabilities Act. 42 U.S.C. § 12101 et seq.). Older people's employment is protected by the Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.), and women are guarenteed equality in education by Title IX of the Education Amendments of 1972. 20 U.S.C. § 1681 et seq.. We are making advances in the fight against discrimination based on sexual orientation.  See Obergefell v. Hodges, 135 S. Ct. 2584 (2015);  United States v. Windsor, 133 S. Ct. 2675 (2013); Lawrence v. Texas, 539 U.S. 558 (2003).   Many states and localities have broad non-discrimination laws that go beyond the protections afforded by federal law.

While our country has often fallen grievously short of its promise of freedom and equality, it is every American’s birthright, one which every lawyer — and every citizen — should cherish and protect.


© Charles Williamson Day, Jr., 2016. All rights reserved.

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