The issue of lawyer discrimination brings new perspectives to traditional topics like the practice of law, the role of the lawyer and the relationship with, and rights of, the client. It forces us to examine the nature of lawyer discretion, the limits of that discretion and the consequences of trying to regulate that discretion. The examinationis a daunting task. This essay offers an approach that attempts to protect both the prohibition against discrimination and the practice of law and to accommodate the tension that necessarily accompanies this effort. It suggests that the best solution is to prohibit lawyers from discriminating in client selection but to permit attorneys to use reasonable professional judgment in selecting the issues and arguments that they are willing to raise on behalf of a client. It discusses the concept of "conditional representation" inherent in the proposal and concludes that the problems associated with this concept are far preferable to the problems associated with any other alternative. With the new California rule, the requirements of the Americans with Disability Act and the recent MCAD decision, this issue will be increasingly before courts, legislators, bar associations, civil rights agencies and, ultimately, the public. The Author offers his proposal as a contribution to the ongoing debate.
20 W. New Eng. Law. Rev. 103 (1998)