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Friday, August 16, 2013

For men only

A few weeks ago, I passed a highway billboard for a divorce law firm that was "men only," meaning they only represented the man in divorce and other family law proceedings. Quick googling shows that this is quite common. Some genuine questions from someone who knows nothing about family law:

1) Is this legal (or could there be an argument that it might violate a public accommodations law and, if so, is there a First Amendment response)? 2) Is this ethical? 3) Does this make sense? On this last point: Are men still treated so uniformly and identically in divorce/custody/family proceedings that one can develop a genuine expertise representing "the man," just as one develops expertise representing plaintiffs in slip-and-fall or employment discrimination cases? Is "the man" side genuinely the same in every family proceeding? Is representing "the man" in these proceedings a political position, in the way that representing the pro-speech position is for the ACLU or the pro-religion position is for the ACLJ?

And what happens when marriage equality comes to Florida? Does the firm's potential client base double?

Posted by Howard Wasserman on August 16, 2013 at 04:03 PM in Howard Wasserman, Law and Politics | Permalink

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Comments

I don't know if it's legal or ethical, but so long as there is pervasive discrimination in determining custody arrangements it is rational to signal which kind of law you specialize in* by gender markers.

*If you spend every day trying to enforce child support orders you are going to develop different skills than if you spend all your time trying to enforce visitation orders.

Posted by: brad | Aug 16, 2013 4:19:19 PM

Fascinating question!

I also think it would be difficult to show that lawyers are required to take on any and all people as clients as a public accommodation. Lawyers are encouraged, in fact, to not take certain clients in case of lack of expertise, etc. I would imagine, as brad said above, that they could definitely justify this under choosing clients based on expertise, even if it was gender discrimination. Not just on visitation, the fact that the man is usually still the higher income earner, etc., but also the fact that men may have specialized counseling needs.

I would imagine with a same sex couple, you could have expertise in representing the non-custodial spouse, or possibly the high income earner, but I am not familiar enough with the relationship dynamics to say. You could probably develop an expertise, however, in divorcing same sex couples, which is an area that is it's own legal minefield, with certain states allowing same sex marriage but not divorce if you live in another state, etc.

Posted by: anon | Aug 16, 2013 4:57:59 PM

It is interesting. I would tend to think that exclusively representing men in divorces is more like exclusively representing plainitffs (or defendants) in personal injury or employment cases or exclusively representing insurers (or policy holders) in insurance cases. Less an overtly political position than a practice niche. But probably correlated to political views on at least some issues.

Posted by: AF | Aug 16, 2013 5:21:35 PM

Representing particular positions in family-law proceedings makes sense as a niche and as a specialty--non-custodial spouse, primary breadwinner, primary caretaker, custodial spouse, etc. That is analogous to representing only plaintiffs in med mal cases or only insurers in claims cases. But are those positions so closely aligned with gender? Brad's statement that there is "pervasive discrimination" in custody (and I imagine other family-law decisions) suggests that they are. That's the empirical question at the heart of my post. And maybe the answer is obvious and the fact that I'm asking just indicates my own class and experiential biases.

But maybe we can add a fourth question to my original post--Is this a wise business choice? Can I set up a practice in which I specialize in representing primary breadwinner/non-primary-caretaker spouses, without expressly culling clients by gender? As a practical matter, perhaps most of my clients will be men. But does it make sense to exclude women who might, in fact, fit my specialty? For a rough analogy: If I specialize in gender discrimination, most of my clients will be women. But should I (or could I, as a legal matter) announce that I only represent women in such cases?

And Anon: Fair point as to the uniqueness of same-sex couples given differences among states--at the moment. My assumption is that Florida only gets marriage equality once SCOTUS tells all the states they must have it, whenever that is.

Posted by: Howard Wasserman | Aug 16, 2013 7:21:23 PM

Re: Is it ethical?, I might ask a subsidiary question--something like: Is this kind of practice always in the best interests of clients and third parties (e.g., divorcing couples' children)? I'm sure there are many exceptions, but rather than being motivated by the desire to specialize (for which maleness, as others have noted, is only a proxy), I suspect that at least some (many?) "men only" divorce attorneys are motivated by an axe they wish to grind--their belief (justified or not) that men are likely not to get a fair shake in family court, their own ex-wife, garden variety misogyny, etc. When this is the case, the attorney starts to look a lot more like a cause lawyer whose cause might conflict with the wishes and/or best interests of his client and/or third parties. When my own parents recently divorced after 40 years of marriage (where there were no custody issues, although my father had been sole breadwinner), my father found himself represented by one of these men-clients-only attorneys. Said attorney, we all later learned, had a reputation for consistently contentious interactions with female attorneys. He had a clear "take no prisoners" approach to every aspect of the proceedings, in equally clear contradiction to what my father stated, repeatedly, that he wanted. It made an inevitably unpleasant process needlessly much more unpleasant and protracted for everyone involved (except, perhaps, for the attorney and his money manager).

Btw, I'm on record as supporting cause lawyering, so long as the dual causes are made transparent to the client, who consents. And clearly there are many divorcing men who in fact prefer a take no prisoners approach as they exit their marriage. But not every client shares that preference (and virtually no children of divorcing parents do), so I guess I'd ask whether a divorce attorney who accepts only male clients is motivated to litigate differently for reasons that are external to his client's case, and if so, whether that's been made clear to his client, or whether the attorney grinds his axe at his client's expense.

Posted by: Michelle Meyer | Aug 16, 2013 8:41:23 PM

I've noticed similar billboards in Florida but it seems to just be an advertising ploy. The billboards I've watched change between "for men only" and "for women only" regularly.

Posted by: anon | Aug 16, 2013 9:50:01 PM

There's a Mass. Commission Against Discrimination opinion on this from 1997 (Stropnicky v. Nathanson), which was the subject of a symposium at the Western New England Law Review in 1998. Here's one of the papers which has the cite:

http://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1246&context=lawreview

Posted by: Jack Chin | Aug 16, 2013 10:08:54 PM

Michelle Meyer:
Is there a literature on ethical responsibilities from lawyers representing parents towards children in divorce cases? Sounds like an interesting angle.

Posted by: Brad | Aug 17, 2013 12:40:04 AM

@Brad: Yep. See, eg, http://www.aaml.org/sites/default/files/ethics%20and%20relocation-article.pdf

Posted by: Michelle Meyer | Aug 17, 2013 9:14:40 AM

I don't see any arguments it is an equal protection or public accommodations law violation yet & would think if it was, they would have gotten in trouble by now. Sounds legal -- it would seem to be different if they refused even to take women who hired them to defend the interests of men (e.g., their fathers) as clients.

Michelle Meyer's analysis is helpful since it takes for granted you can do it if it furthers the clients interests. But, it might not in certain cases. This narrower approach is often a helpful way to approach legal issues.

Posted by: Joe | Aug 17, 2013 12:22:12 PM

ETA: There was a USSC case in the early 1970s that upheld a law against sex specific advertising when the advertising promoted hiring that was illegal. If the niche in question is legal, the advertising would likely be. As to Florida, it was late to the game, but it now allows same sex adoptions. So, even w/o marriage, there are family law opportunities there.

Posted by: Joe | Aug 17, 2013 12:26:32 PM

[I missed the link to the MA case.]

Posted by: Joe | Aug 17, 2013 12:32:18 PM

In addition to the Nathanson case, you might want to read the various state versions of comment [3] to MR 8.4.

http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_8_4_cmt_3.authcheckdam.pdf

Posted by: John Steele | Aug 17, 2013 7:43:00 PM

California has ethics rule, rpc 2-400, prohibiting discrimination in accepting or rejecting a client. Aba model rules has a comment to rule 8.4 saying it is misconduct to exhibit bias in the course of representing a client.

Posted by: Jp | Aug 18, 2013 1:30:38 AM

FYI, the Nathanson case was appealed from the Commission against Discrimination to the MA Superior Court, which upheld the finding that the attorney engaged in gender discrimination. Nathanson v. MCAD, 16 Mass. L. Rptr. 761, 2003 WL 22480688 (MA Super. Court, 2003).

Posted by: Martin | Aug 19, 2013 12:07:28 PM

There is no public accommodations problem because, while private attorneys ARE considered public accommodations under the Civil Rights Act (as well as the Americans with Disabilities Act, and I would assume any other federal laws regulating public accommodations), sex is not one of the categories public accommodations are prohibited from discriminating against. See Title II of the Civil Rights Act.

Public accommodations are only prohibited from discriminating on the basis of race, color, religion or national origin. Otherwise, all those women-only gyms would be illegal too.

Posted by: JW | Aug 20, 2013 11:27:52 AM

I have seen these advertisements as well and it's such an interesting question. I feel our culture has led us to believe that women are the victims in the divorce and deserve everything, but sometimes it is the man who needs the support. I don't see how saying that you only help men in divorce cases is different than only helping people with DUI cases. You build your business to attract certain clients there is nothing wrong with that.

Posted by: Adam | Aug 20, 2013 12:24:52 PM

JW, putting aside Title VII, state public accommodation laws are also at issue here.

Posted by: Joe | Aug 20, 2013 12:36:20 PM

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