Abstract
The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?
Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only law firms is acknowledged. The analysis of the ethical issues raised by these gender specific firms is somewhat the same regardless of what gender is excluded. Because the exclusion occurs before any contact with a particular client, few ethical rules, or legal rules, apply. Because of this, the analysis must center on broad legal and moral principles and extend into revisiting the debate over attorney autonomy and the appropriate extent of an attorney’s identification with the client or cause.
The exclusion of women, however, raises specific concerns regarding the balance of ethical rules and principals. The inference is that men are being treated unfairly in the system and that a fight may be needed to accomplish a just result. Further analysis is necessary here to test this inference and, to the extent the inference exposes a danger of an unjust result exists, to opine whether the danger justifies the harm caused by the systemic acquiescence to a message that allows disparate treatment of women.
This article begins with a discussion of moral and ethical rules and principals that guide an analysis of a gender specific client selection process. When these rules and principals are considered along with extrinsic legal rules, such as those stemming from freedom of speech considerations and state anti-discrimination laws, the gap which allows the practice to avoid challenge, is exposed.
At this point, the analysis narrows from a discussion of gender specific client selection to the specific concerns associated with firms that exclude women from the client selection pool. Finally, after suggesting that a need to protect men’s rights in divorce should not justify a systemic acquiescence to the exclusion of all women from the potential client pool, this article advocates for action by the legal profession. Action addressing the harms associated with the discriminatory practice of exclusion of all women as potential clients solely because of gender is necessary to protect the integrity of the profession and the legal system.
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