Celebrating 10 years! 2007-2017

Catholic Family Law Lawyer Dilemma

Hey folks. Regular lurker, first time poster. Basically, catholiclawyeriowa12/06/17
Are you sure you're in the right place? While many responde toooldtocare12/06/17
You're right. I'm used to addressing people this way. I re catholiclawyeriowa12/06/17
"To say that my jurisdiction has swallowed the narrative abo junkwired12/06/17
There is no loving way to tell someone that you are a homoph trollfeeder12/06/17
Before I get into anything else, I will make a quick comment cocolawyer12/06/17
I've never not had a prenup at least partially thrown out du thirdtierlaw12/06/17
California will uphold a prenup however it disfavors them. T cocolawyer12/06/17
They are considered, but strongly disfavored as well. The un thirdtierlaw12/07/17
I agree. Attorneys stating that prenups are not generally th cocolawyer12/07/17
Raised Catholic, pretty agnostic in college, now a non-denom flyer1412/06/17
Why wouldn't you ask your priest this question? Or bishop so tom_foolery12/06/17
I could write to Bishop. I plan on asking my priest, but h catholiclawyeriowa12/06/17
Masterpiece Cakeshop v. Colorado Civil Rights Commission booyeah12/06/17
I get the state bar emails but haven't come across this yet. catholiclawyeriowa12/06/17
Welcome sir, and please post again in JD underground I thin trijocker12/06/17
Decline the case and tell your client to go get a real lawye isthisit12/06/17
Thanks for my laugh of the day. I wish I could put that on m cranky12/07/17
It may not be legal to turn him down for explicitly religiou onehell12/06/17
Catholics don't believe in divorce. I don't know how suc anothernjlawyer12/06/17
The Church does allow for separation in cases of adultery, ( catholiclawyeriowa12/06/17
Actually the bible recognizes 2 explicit grounds for divorce onehell12/06/17
I couldn't get this reply out of mind at Mass this morning. catholiclawyeriowa12/07/17
An entity powerful enough to create the countless trillions dietcoke12/06/17
Please don't think that all Catholics are like this person; laidoffnewlawyer12/07/17
TL;DR. Sincerely, A practicing Catholic also from the themapmaster12/07/17
I have 2 comments: 1) I believe you should feel free enti guyingorillasuit12/07/17
I completely and utterly disagree with your prenup answer. I cocolawyer12/07/17
Can you describe how these prenups were set aside? guyingorillasuit12/07/17
"you should feel free entirely free to decline client engage onehell12/07/17
"A lawyer “shall not intentionally, recklessly, or repeate guyingorillasuit12/07/17
Again, I get the argument. But the counterargument is that i onehell12/07/17
I have known people who were themselves victims of domestic guyingorillasuit12/07/17
I agree although I would probably say that you are to stacke cocolawyer12/07/17
a jurisdiction where gay marriage has been legal for a while dingbat12/07/17
I am a devout Catholic. So devout that I have a theology deg laidoffnewlawyer12/07/17
In short: "Faith" sounds much nicer than "Bigotry" dietcoke12/07/17
You should never do something that goes against your values. qdllc12/07/17
Consider this angle: A marriage that has a pre-nup, in g nighthawk12/07/17
OP, I share your traditional Catholic beliefs on this issue. texfed12/10/17
On your client intake form, you should ask if anyone has had defensivelawyer12/10/17
Discrimination is discrimination no matter how you label it boomeresq12/11/17
I know California and maybe some other states have non-discr williamdrayton12/11/17
There was such a case in Massachusetts which dinged a female onehell12/11/17
Unless it's affirmative action in law schools and universiti themapmaster12/11/17
I used to be Catholic and religious, until I internalized th maverick12/11/17
For a similar reason I fall under the agnostic-atheism categ junkwired12/11/17
OP, would you represent a porn shop and gentleman's club? Wo nighthawk12/11/17
I wouldn't be so sure. Real estate closing can pose an issue thirdtierlaw12/11/17
There is no way to actually live your life as a Christian an maverick12/11/17
Oh joy, a recent catholic convert filled to the brim with ri dopesmokeresquire12/11/17
171 triplesix12/11/17

catholiclawyeriowa (Dec 6, 2017 - 12:50 pm)

Hey folks. Regular lurker, first time poster.

Basically, I am a lawyer and have been for a while now. I have a general practice that involves a fair amount (maybe 40-50%) of family law, e.g.: custody disputes, child apprehension, property division on separation, interspousal agreements (including pre-nups and separation agreements), and also divorces themselves.

Now this of course immediately throws up some red flags for a conscientious Catholic, but I have basically thought through it like this (and have been comforted to find others online, including Canon lawyers, come to the same conclusion): I am not in a position to judge people's motives for separation, nor am I in a position to "pick and choose" whether I get the "aggrieved party" in a broken marriage. By the time they come to me, the separation is already a fait accompli. My job is to assist my client navigate the law as it stands and ensure that the children are taken care of as best as possible, that everyone is treated fairly and in accordance with the law, and that I get the best possible result for my client. I have no insight, special knowledge, control, or professional skill with the reasons why a marriage "broke up", whether the marriage was ever valid in the first place, or whether or not the involved parties go on to subsequent relationships which may or may not be immoral or illicit. This is basically how I look at it, and it makes sense to me (however if anyone has a different perspective on this, or if there is some explicit and "on point" church teaching that they can direct me to on the matter, I would certainly appreciate it!)
Anyways, on to the question at hand.

Earlier today, I got an email at work from an old acquaintance in high school whom I hadn't spoken with in quite some time (maybe once in the last fifteen years?). He was reaching out to me for with some pretty standard questions about the implications of his coming marriage on previously owned property, etc. etc. The kind of questions I have fielded hundreds of times. The kicker is, it turns out this fellow is gay (TBH I had my suspicions even back in high school) and he is to be married to his partner in the coming year or so (I practise in a jurisdiction where this has been legal for some time). He wants me to draw up a simple prenup for him that will protect his and his partner's previously acquired property in the event of a separation or death.
Immediately, I see that I am in the midst of a moral dilemma. Honestly it makes my hands sweaty just thinking about it. I don't want to be rude or unkind to this poor fellow, who really is a sweet and gentle man. But, naturally, I don't want to jeopardize my own soul or put myself into a position of aiding and abetting sinfulness either.

I also gathered through the grapevine that he had been run out of his (Protestant, FWIW) church some time ago as he was wrestling with his sexual inclinations that have (tragically) soured him on religion in general and orthodox Christianity in particular. This is relevant because I took rather the opposite path—when we were in high school together, I was a sort of blasé "atheist-by-default", and in the intervening years have discovered faith and became Roman Catholic back in 2014. I don't think he knows this (perhaps if he had, he wouldn't have reached out to me? hard to say).

Basically, when I look at this, I can see it two ways that seem plausible to me:
By doing up this agreement for him, I am not condoning or participating in his "marriage", but am just helping to ensure that he has fair access to the legal protections afforded to people with respect to their property. To draw up such an agreement would be "neutral" in point of the validity/morality of the particular relationship he happens to be in. One could apply this same reasoning to a heterosexual couple who wanted to draw up such an agreement who may (known or unknown to me) have had previous marriages or what have you that would be similarly immoral.
By doing up this agreement for him, I am implicitly confirming (at least outwardly) the validity of same-sex marriages, and so am materially cooperating in sin. I should decline to do the work for him, and find a way to explain that to him in a way that is both loving and reaffirmative of traditional Catholic morality.

Honestly, I could convince myself of either of these. I don't want this poor guy to end up screwed down the road because I declined to put basic legal protections in place for him. That doesn't seem fair, and the nature of the relationship doesn't seem to need to come into it. On the other hand, am I just saying this because I want to avoid the awkwardness of having to face the issue head on? Am I being a sophist to myself just to squirm out of a difficult situation?

Needless to say declining this work could potentially have a domino effect on me professionally, as well. While it is known that I am Catholic, and a serious one at that, this issue has never come up at my firm before and the "tolerance" of my traditional views has never been tested by fire, so to speak. I have no idea how the whole thing would shake out if I turned down the work and this fellow decided to complain to the partners or make a stink out of it in the media or who knows what else. To say that my jurisdiction has swallowed the narrative about gay rights hook line and sinker would understate the matter. To be opposed to it at all is taboo and has already led to some rather uncomfortable personal moments for me.

Sigh. Basically, I don't know what to do. But you folks have proven again and again that you are thoughtful and caring attorneys and I can't think of a better place to sound-off for advice. Any thoughts or guidance would be appreciated.

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toooldtocare (Dec 6, 2017 - 1:02 pm)

Are you sure you're in the right place? While many respondents here are intelligent, pithy, occasionally witty and generally well-versed in the law, can't say I've seen much that are "thoughtful, orthodox, and loving." So assuming you're not just trollin', it appears that you're having both a professional crisis and a moral crisis. So speak with your priest about the one, and find a local attorney you can trust for the other, and see what advice they give.

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catholiclawyeriowa (Dec 6, 2017 - 1:04 pm)

You're right. I'm used to addressing people this way. I realize this board is not full of Catholics, but I am sure folks of other christian faiths have faced similar dilemmas.

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junkwired (Dec 6, 2017 - 2:24 pm)

"To say that my jurisdiction has swallowed the narrative about gay rights hook line and sinker would understate the matter. To be opposed to it at all is taboo and has already led to some rather uncomfortable personal moments for me."

Oh dear, your jurisdiction was swept away by the gay narrative and declines to treat homos like second class citizens? Well that's a shame. Anyway, here's an EASY fix to your problem. Tell your friend that you'd be willing to draft his prenup, but also tell him that you think his lifestyle is immoral and expressly state that you do not approve. By doing so you will preserve your spiritual superiority while also demonstrating your bigotry. I guarantee that he'll find someone else to do his work. As an added bonus, if anything gay-marriage related occurs to him in the future, you won't be called.

By helping him without a clear disclaimer there's at least a 50% chance you're placing your soul in jeopardy, and when eternal life is at stake, even 1% is too much.

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trollfeeder (Dec 6, 2017 - 1:00 pm)

There is no loving way to tell someone that you are a homophobe.

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cocolawyer (Dec 6, 2017 - 1:08 pm)

Before I get into anything else, I will make a quick comment. If you are a solo attorney completely and utterly stay away from Pre-Nuptial agreements. It is a ripe area of law for malpractice. In fact I have never lost a case that had Pre-Nuptial agreements, that other attorneys prepared, thrown out by the Court's. On two occasions opposing parties previous counsel were sued for malpractice because the prenups were thrown out. I would avoid doing them all together. There is more ways to do them wrong then do them right.

Now to your actual question. If you are comfortable doing prenups I see no reason why you shouldn't be able to do his. Yes he is gay, and homosexual marriage is in conflict with your religious beliefs. Of course as a Catholic, so is divorce, and a ton of other issues that generally arise in family law cases. You were able to come to terms on that, I see no difference with this scenario.

You are not making your friend gay. You are not forcing him to get married. You are not preceding over the wedding. You are simply preparing documents that may or may no protect him in the future if he decides to go through with the marriage. If he is hellbent on doing so, your refusal to do the prenup will not prevent the marriage. Your friend will just get married without the protection or find another attorney that will be willing to do the prenup and get married. I do not know how you are encouraging the marriage by preparing prenup docs which is going to occur or not occur regardless of your participation. The only thing you are doing is missing out on a value client and potential referral business in the future.

Again I would never encourage prenups, as this area of family law is ripe with perils, but if you in your practice typically prepare them, I see no moral dilemma for you.

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thirdtierlaw (Dec 6, 2017 - 1:50 pm)

I've never not had a prenup at least partially thrown out during a final hearing. It's why my firm doesn't draft them. If I went to an attorney, they wrote me up an agreement that they say will protect my assets, and then it doesn't, I'm suing for malpractice. But maybe there are still some jurisdictions that uphold prenups.

As for OP's question. This is an absurd question. You can just tell your H.S. buddy that you now have a policy of not taking on cases for people that you know and give him the number of a better attorney. Maybe I'm biased because I represent murders and rapists but how is representing someone condoning their behavior in anyway, shape, or form? He is hiring you to do a task, that you do on a regular basis, and has nothing to do with him being gay or not.

It's no different than doing a divorce, which if I recall is a major sin in the Catholic church.

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cocolawyer (Dec 6, 2017 - 3:12 pm)

California will uphold a prenup however it disfavors them. There is over 14 ways I know how to have a prenup thrown out of court and only one way to do it right, which can still be thrown out in part at least. The first part everyone gets right.

Both parties hire attorneys and negotiate on the terms, its completed weeks prior to the wedding, there is no advantageous terms in the prenup that promotes divorce, complete disclosures are made and the prenup is crafted in such a way that none of the traditional contract defenses apply. However a vast majority, in my experience, attorneys miss the not so known ways, which can get it thrown out by the court.

Even if you do everything perfect the support component can be thrown out just because the amount is unconscionable at the time of separation.

I am not sure how your jurisdiction works with them, but really good attorneys in California tend to stay away because there are more ways to do them wrong then right. And it's an easy case to prove malpractice on. If the prenup is thrown out and the difference is a few million, your insurance carrier probably only going to cover 1 million, it could be a death kill to your firm. Just not worth the risk.

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thirdtierlaw (Dec 7, 2017 - 5:17 pm)

They are considered, but strongly disfavored as well. The unconscionable bit is how I normally attack them. In my jurisdiction, there is an extremely low bar to cross to have prenups found unconscionable at the time of divorce. It is also really easy to argue coercion. Even if it was completed weeks before a marriage, by the time prenups are typically discussed, the wedding planning is well on its way.

I've never seen a spousal maintenance section of a prenup that was challenged upheld. We have spousal maintenance guidelines and though they don't require "good cause" to be deviated from, most judges apply the guidelines the same way they apply child support guidelines. So if I get my client on the stand to say, "I was afraid that he would dump me and kick me out of the home we'd been sharing for the past 2 years if I didn't agree with the spousal maintenance section," and it's outside the guidelines, it's going to be thrown out. Add in that it is almost always the party who is trying to enforce the prenup's attorney that drafted the document and becomes almost worthless.

The big issue is that I live in an equitable division State. So any prenup that is upheld is likely the result that a judge would have reached by herself. So besides the malpractice issue, you are essentially taking money to offer next to no value. That is just plain bad for your reputation. Clients are delusional and typically only hear what they want to hear. So the second the client sees the pleading asking the prenup to be set aside, they'll go storming into the drafter's office and ask, "can they do that?" Even if it has been explained at the time of creation that it can be. That client is going to storm out of the office and go find a new attorney to, "Fix the mess attorney 1 created."

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cocolawyer (Dec 7, 2017 - 5:25 pm)

I agree. Attorneys stating that prenups are not generally thrown out or that they have never had one they drafted or reviewed thrown out fall in one of two categories: 1) They do not know enough family law attorneys, or 2) Any one they drafted have not been challenged because its an argument between two poppers. From my knowledge most jurisdictions disfavor prenups.

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flyer14 (Dec 6, 2017 - 1:14 pm)

Raised Catholic, pretty agnostic in college, now a non-denominational Protestant.

If I had a moral issue with serving someone, I would respectfully decline and leave it at that. A lawyer is not obligated to take on a case that he does not feel he could represent to the best of his professional ability without feeling conflicted.

While it makes bad business sense, it's entirely your choice to do so.

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tom_foolery (Dec 6, 2017 - 1:23 pm)

Why wouldn't you ask your priest this question? Or bishop so he can get you a good official stance from the church?

Or is this a subtle yet entertaining troll job based on yesterday's Supreme Court case with the baker?

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catholiclawyeriowa (Dec 6, 2017 - 1:28 pm)

I could write to Bishop. I plan on asking my priest, but he wouldn't be viewing this issue with the necessary legal education background.

What is the baker case?

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booyeah (Dec 6, 2017 - 1:46 pm)

Masterpiece Cakeshop v. Colorado Civil Rights Commission

I find it very difficult to believe that you didn’t know that.

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catholiclawyeriowa (Dec 6, 2017 - 2:48 pm)

I get the state bar emails but haven't come across this yet.

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trijocker (Dec 6, 2017 - 1:32 pm)

Welcome sir, and please post again in JD underground
I think it would be valuable for other posters here to hear from someone with different values.

Now let me get to my opinion or your issue. First of all I think anyone who can practice family law must truly be iron willed or put ear plugs into your ears daily. Having sat through several family court hearings, went through my own divorce proceedings and heard spouses throwing thinks at Family Court Services I never could understand how anyone could deal with that type of law. God bless you for taking it on. It appears that you have a dilemna with your Catholic faith and the drawing of this prenup. Having attended numerous Catholic masses at my childrens school I must admit I can neither understand the faith, nor see how it represents much of American society. I never saw people of color, gays, LGBTs or anyone who was not a mainstream white person at the mass. You would truly be stepping outside your faith to help someone if you feel that it is not crossing some moral line you have drawn in the sand with your faith. If however you cannot bring yourself to represent this man, I believe the rules of Professional Conduct do not compel you to accept every client that comes through your door, you can suggest he find other counsel. Whatever you decide to do, good luck to you, and post in here again.


Client-Lawyer Relationship
Rule 1.16 Declining Or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:


(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation.html

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isthisit (Dec 6, 2017 - 1:51 pm)

Decline the case and tell your client to go get a real lawyer.

People who hire family lawyers don't want a Mr. Rogers type who sings hosannas and has to workshop the morality of taking the case. They want a street fighter who doesn't care if their client enjoys the occasional glory hole so long as the check clears.

With that said, welcome to the board and I hope you poast again. Your POV is refreshing.

FD: Roman Catholic here who lives in sin.

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cranky (Dec 7, 2017 - 6:28 pm)

Thanks for my laugh of the day. I wish I could put that on my website.

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onehell (Dec 6, 2017 - 2:05 pm)

It may not be legal to turn him down for explicitly religious reasons, particularly since the cake-maker case now pending at SCOTUS won't have a decision for a few months hence.

So unless and until SCOTUS says otherwise, which could very well happen, the law of your jurisdiction is the law of the land. Although sexual orientation is not a protected class federally, many jurisdictions (especially ones where gay marriage has long been legal) view discrimination based on sexual orientation as discrimination based on sex or even grant it explicit protected class status, and may view your law firm as a place of public accommodation. There are real cases applying this rationale to lawyers. A female divorce lawyer in Mass got found to have acted illegally by advertising that she would only represent females, for example.

That said, I think that personal friendship and legal representation can be fundamentally incompatible. Your personal and professional relationships should be kept separate, and that alone is good enough reason to decline without bringing religion into it. There's also the malpractice risk associated with prenups that cocolawyer described. It is absolutely true that if some judge doesn't think the agreement was substantively fair in his or her own subjective opinion, these agreements get tossed out all the time, leading to very irate former clients.

So if you want to take the case, I would imagine that you can explain to your priest in confession that you may not legally be allowed to discriminate based on sexual orientation at the present time, regardless of your sincerely-held religious beliefs. Priest gives you penance and whatever sin it may have been represented is forgiven. And if you don't want to take it, there are plenty of other reasons not to.

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anothernjlawyer (Dec 6, 2017 - 2:42 pm)

Catholics don't believe in divorce.

I don't know how such an apparently strict Catholic could rationalize helping people end their marriages.

And the timing? Nice flame.

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catholiclawyeriowa (Dec 6, 2017 - 3:19 pm)

The Church does allow for separation in cases of adultery, (and the Church considers divorce without annulment to be the same thing as separation. The difference between the Church and the rest of the world, in this case, is that the world thinks the marriage ended with the divorce, and the Church thinks they are actually still married). (I think that it is unclear from Jesus's words alone (sola scriptura) which of the two options it was that he meant, unclear whether divorce-understood-as-separation, or divorce understood as an actual end to the marriage. )

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onehell (Dec 6, 2017 - 3:30 pm)

Actually the bible recognizes 2 explicit grounds for divorce: sexual immorality and abandonment by an unbeliever. In addition, the priests will often find a reason to consider the marriage annulled for church purposes so that people can remarry.

I think OP's ethical conundrum for "regular" divorces is actually solved by simply saying that a state court divorce only separates the two people under the laws of man, and that the church process is a separate one. Should the client fail to avail themselves of such process, that is not something with which the lawyer has assisted (nor is it something that even applies at all if the client doesn't happen to be Catholic).

My mom was a devout catholic who got a divorce before she met my dad. She went to the priest, and the church considers her first marriage to have been annulled. There are other relatives who have done similar things. My experience has been that the priests will basically hint at what you need to say, you confirm it, the ex doesn't object (or even if they do object, your intent is entirely subjective and your statements about it can't really be controverted), and a declaration of nullity is issued.

Here are the catholic grounds for annulment: http://www.usccb.org/issues-and-action/marriage-and-family/marriage/annulment/

Note the grounds are largely focused on the need for you to "intend," at the time of marriage, to be good to one another, to be open to children, to marry for life, etc. Length of marriage isn't dispositive. All that matters really is what was in the spouses' heads at the moment they took their vows, assuming you don't have even easier grounds like if the officiant was not church-authorized.

So basically, the magic words are that you and/or your ex had misgivings from the get-go. In hindsight, most divorced people say, and indeed truly believe, something like that anyway. Not very hard and frankly, the web-page above, if you read between the lines, it is pretty much telling you what you need to say. So OP isn't aiding any sin by helping people get divorced; the sin only takes place if the person is Catholic AND they fail to avail themselves of this separate and fairly perfunctory process that the lawyer has nothing to do with.

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catholiclawyeriowa (Dec 7, 2017 - 1:47 pm)

I couldn't get this reply out of mind at Mass this morning.

So are you saying all Catholics need to bow out of the family law system entirely? I don't see how helping a mother get child support after a marriage is already broken is "heaping hot coals on my head". Like I said, when they get to me, it's already a broken family. I try to help people make the best and fairest of the pieces that are left. I could see what you were saying if my involvement made the situation worse, but that's not the case. My job is to help make the situation better and see that people are treated with dignity and fairness and children are taken care of and provided for. Is a physician complicit in a robbery because he works to save robber and victim alike when they are injured? Does a tailor bear the blame for a torn garment when he tries to patch and salvage it when it's brought to him?


I'm open to being wrong about this. But I get the feeling you haven't really thought this through all the way.

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dietcoke (Dec 6, 2017 - 4:06 pm)

An entity powerful enough to create the countless trillions of stars in the sky does not care if some random guy on earth loves another person with the wrong type of genitalia.

Stop using superstitious desert mysticism to justify your bigotry. Behind all that pretty writing of yours is one thing: Hate.

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laidoffnewlawyer (Dec 7, 2017 - 2:17 pm)

Please don't think that all Catholics are like this person; or that his position is one mandated by Church teaching. It's pure absurdity.

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themapmaster (Dec 7, 2017 - 1:28 am)

TL;DR.

Sincerely,
A practicing Catholic also from the Midwest who probably shares OP's values

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guyingorillasuit (Dec 7, 2017 - 2:30 am)

I have 2 comments:

1) I believe you should feel free entirely free to decline client engagement on grounds of your faith. You would be declining it not for a discriminatory reason, but because you would be unable to offer effective representation. If I feel that I do not believe a client, or find his or her case distasteful, I should be able to refuse representation. How can I be an effective advocate if I do not believe in what I am saying? The attorney-client relationship is fundamentally different from a cake baker-client relationship in this regard. I can bake a decent cake for someone, even if I don't like or trust him. I may not be an effective advocate if I don't like or trust my client.

2) I don't know a single family law attorney who refuses to draft or review prenups. I believe the malpractice risk is widely overstated. As long as you follow the statutory scheme, I simply do not see much risk. I practice in a large metropolitan area, and I have never seen a successful malpractice lawsuit against a family law attorney for prenup-related practice when basic rules were followed. If I see a risky situation, such as when the client wants a clause inserted that would be void as against public policy, I advise him or her in writing, and make them sign for receipt of that advice. Most prenups tend to be 90% boilerplate, anyway.

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cocolawyer (Dec 7, 2017 - 10:37 am)

I completely and utterly disagree with your prenup answer. I have had three prenup cases that I had thrown out by the courts. The attorneys followed the normal statutory scheme but still screwed the pooch. On two occasions they sued. On one occasion they were successful. I have never done a prenup just for that reason.I find prenups are on par with attorneys who insist they can write the QDRO. I would say they probably have the equivalent same risk of malpractice.

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guyingorillasuit (Dec 7, 2017 - 10:54 am)

Can you describe how these prenups were set aside?

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onehell (Dec 7, 2017 - 12:45 pm)

"you should feel free entirely free to decline client engagement on grounds of your faith."

Not so fast. I understand your argument about not being able to be effective, but by way of example, look at CA ethics rule 2-400:

"In the management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, **sexual orientation**, religion, age or disability in . . . accepting or terminating representation of any client." It doesn't have an exception for "unless the lawyer thinks he won't be able to be effective."

Of course, SCOTUS may soon overturn rules like this as applied to sincerely held religious beliefs. But unless and until that happens, the law and ethics rules of his state govern and if the state is as liberal as he says (having been an early adopter of gay marriage), there's a good chance he can't legally decline for this reason. And why take the risk when there are so many other valid reasons to decline? Hell, he could just say he's too busy. Or he could just not give a reason at all. Explicitly stating faith as the reason would be making a statement for the sake of making a statement, and it would also hurt a friend unnecessarily.

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guyingorillasuit (Dec 7, 2017 - 4:31 pm)

"A lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” See Cal. Rules of Prof’l Conduct r. 3-110(A). “Competence,” under Rule 3-110(B), in any legal service “shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.”

If you lack the mental or emotional ability to represent a client who you believe has committed a mortal sin, and is headed for hellfire, you should turn down representation. If you lack the mental or emotional ability to enable and promote behavior by your client that condemns him to damnation, you should turn down representation. Note that florists and bakers do not operate under any similar rule. That is where the distinction lies.

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onehell (Dec 7, 2017 - 6:21 pm)

Again, I get the argument. But the counterargument is that if you can't represent people who don't follow your religious scruples, then you probably shouldn't be in private practice, and maybe not even licensed in the first place. Everyone has to represent people they dislike, from time to time, if they have clients at all.

Besides, competence means you have enough legal skill and/or experience to handle the matter. It's intended to create a requirement for the lawyer, not a defense. You don't get to say "Even though I am perfectly capable to handle this case otherwise, I don't like this client because of their race/religion/etc so I would totally half-ass it and therefore it would be unethical for me to take it, and therefore I am free to decline it!"

But again, it's purely academic. Why not just say you're too busy or whatever and decline it? There's absolutely nothing to be gained from making a statement here.

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guyingorillasuit (Dec 7, 2017 - 6:33 pm)

I have known people who were themselves victims of domestic violence who refused to represent clients accused of DV. One such person is in my mentor group. Is she doing something unethical? What about criminal defense attorneys who refuse to represent clients accused of sex crimes against children?

I agree with you that the right thing to do is to say you're too busy. However, I think you should be able to decline representation based on your beliefs, unless there's some kind of an emergency and you're the only lawyer in town. If you can find such a town, let me know. Around here, I can probably count 800 attorneys within a 200 yard radius. There is no shortage.

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cocolawyer (Dec 7, 2017 - 7:31 pm)

I agree although I would probably say that you are to stacked with work to help them. There may be real world ramifications with informing someone that you cannot accept their case because you don't represent homosexuals, child molesters, DV perpetrators, muslims, christians, fatties, etc. If you like to not be skewered on Yelp, AVVO, Google, etc., you might just want to tell them you are so busy with all the other loads of cases (because you are the sh*t), that you could not take on their case. They need someone who can dedicate themselves to the intricate details of the matter, in a way that could uncover the horrific actions of Y and make you look like a saint...or some bs.

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dingbat (Dec 7, 2017 - 9:28 am)

a jurisdiction where gay marriage has been legal for a while? Like, anywhere in the U.S.?

On a more serious note, you could decline, and give him any number of reasons other than faith, or state that because of your faith you do not think you could represent him adequately, and you honestly believe he deserves better - and give him a few attorneys that you would recommend

OR, you could take the case and do the best you can, and maybe use the opportunity to let him see that faith and religion don't have to be exclusionary and discriminatory. Remember, according to the bible all people are sinners, he just chooses a different sin. Jesus said "let he who is without sin cast the first stone" and nobody is without sin. Why treat his sins different than other clients who sin by getting divorced? Maybe by showing the compassion mandated by christianity, you can draw him back toward, if not piety, at least reverence?

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laidoffnewlawyer (Dec 7, 2017 - 2:12 pm)

I am a devout Catholic. So devout that I have a theology degree from a premier Catholic university. And, I got some views on this ridiculous professional and moral dilemma you are going through.

First off, our Rules of Professional Conduct as lawyers in most jurisdictions include a provision stating that it is "professional misconduct to engage, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation,national origin, marital status, or disability." Quite simply, by rejecting someone solely based on their sexual orientation, you would open yourself to both legal liability and disciplinary action.

Secondly, your positions are entirely contradictory. At first,under the guise of Catholic teaching, you say that you cant't represent a gay individual as he or she prepares for a same-sex civil wedding. Then, in the next breath, you say, but I love getting child support for children born out of wedlock (known as illicit relationships under Catholic teaching) and obtaining civil divorces for people (which are entirely immaterial as it relates to Catholic recognition of marital relationships; the grounds for a religious annulment in the Church are entirely different and not anywhere near coextensive with the grounds for a civil divorce).

Thirdly, your contradictory positions summarized above clearly invite some significant questions about where do you draw the line. Do you meet with clients on Fridays during Lent over lunch and watch them eat a hamburger? Do you help a client seeking a divorce simply because he or she no longer likes their spouse? Do you assist with a client seeking legal protections relating to a child born via IVF? Do you assist with a custody dispute between never-married parents? Come on, you have to recognize the important distinctions between civil law and the law God has created in his realm.

And, finally, your position is an empty, spiteful one that fails to account for pastoral needs of human beings. Even you must acknowledge that the Church does not teach that same-sex attraction is inherently sinful. And, you must acknowledge God's instruction that we are to care for one other, flaws and all. Your position shuts the door to fellow children of God even when those same children are being welcomed into our Church community now like never before under Pope Francis (well, there is historical precedent in the Church during the Middle Ages of blessing homes in which same-sex partners lived, but I don't want to blow your mind up anymore beyond what the potential ewwwy gooey same-sex stuff already has done).

In short, do the damn pre-nup. God isn't going to spite you for it, neither will the Church nor will the Bar.

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dietcoke (Dec 7, 2017 - 2:15 pm)

In short: "Faith" sounds much nicer than "Bigotry"

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qdllc (Dec 7, 2017 - 4:32 pm)

You should never do something that goes against your values. I know lawyers who won’t touch divorce and other family law issues out of fear of gaining bad karma.

Until the SCOTUS says you can be forced to provide a service that violates your convictions, you might as well stand on them. Lawyers pick their fields of practice, so the smart money is to refuse cases in areas of law that would put you in conflict.

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nighthawk (Dec 7, 2017 - 4:59 pm)

Consider this angle:

A marriage that has a pre-nup, in general, creates less incentive to stay in the marriage. If you provide a pre-nup for this gay individual then you are creating more incentive that things fail.

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texfed (Dec 10, 2017 - 8:13 pm)

OP, I share your traditional Catholic beliefs on this issue.

But I don’t think there’s any sin in doing a prenup for a gay couple, just as there’s no sin in doing one for one of the 99.9% of straight couples who violate the Church’s teaching against contraception.

Your gay friend doesn’t need self-righteousness from you. Just friendship. Feel free to assist him with his civil marriage, just as you might assist a Hindu temple with a real estate transaction without worrying that it made you an idolater.

Also, I’d urge you to read about ministries like Courage and books like “Gay and Catholic”: the consistent testimony of gay Catholics who have embraced chaste celibacy is that judgmental straights ALWAYS made them experience Church teaching as oppressive. It’s loving friendship that has led them to experience Church teaching as liberating Good News.

Don’t bring up your faith with your gay friends. Just be a friend. If they ever ask you about your faith, answer. But that’s a conversation they need to choose to start, not you.

My gay neighbors see the crucifix on the wall when they come by for dinner. My gay atheist best friend knows what my beliefs are. These men tolerate my Catholicism, and I tolerate how they live their lives. But we can still be friends, neighbors, and fellow Americans. It’s just the Christian thing to do.

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defensivelawyer (Dec 10, 2017 - 8:32 pm)

On your client intake form, you should ask if anyone has had or would consider having an abortion, so you can weed out people who could tarnish your pristine and superior soul.

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boomeresq (Dec 11, 2017 - 7:03 am)

Discrimination is discrimination no matter how you label it and is wrong. Religion can not excuse homophobia. Nor can it justify refusing to represent those of a different race, religion and/or country of origin from you.

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williamdrayton (Dec 11, 2017 - 11:21 am)

I know California and maybe some other states have non-discrimination clauses in their ethics rules, but can somebody show me any cases in which these clauses have been enforced? I'm genuinely curious.

since when are lawyers required to take a case? lawyers decline to take cases every single day, especially those working in "s**tlaw who get a lot unsolicited phone calls and walk ins.

I guess the line of questioning in an ethics hearing would go like this:
Ethics Board: why did you decline to take the divorce/custody case of this lesbian person?

Attorney: "Having not done any such cases in the past, I felt they'd be better off with a specialist."

OR "after evaluating my caseload, I found I was too busy"

OR "there would not be enough billables to justify my initial expenses"

OR "I'm simply not interested at this time"

last I checked, legal practices were not a "public accommodation" pursuant to the Civil Rights Act.

If this troll from Iowa doesn't want to represent a gay friend, so be it. Gay friend can find another attorney more than willing to take his money.

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onehell (Dec 11, 2017 - 3:24 pm)

There was such a case in Massachusetts which dinged a female lawyer who advertised that she would only represent female clients in family law matters.

As to the second issue, you're absolutely right. These rules don't REALLY ban discrimination. What they ban is OPEN discrimination. As long as you just say you're too busy you should be fine; nearly all lawyers decline more cases than they accept, either because they really are too busy, or because they have doubts that the client will actually be able to pay, or even because they think the person will be a pain in the arse. Whatever. It's like when applying for a job; the rejection letters rarely say exactly why you weren't selected as there is nothing to be gained by it.

It's kinda like fair housing. There's something called the "Mrs. Murphy Exception" which allows small-time apartment owners (4 or fewer units and owner lives in one of the units) to discriminate, so long as they don't ADVERTISE a discriminatory preference (other than females seeking female roommates or males seeking male roommates, which you can advertise). For such small owners, for example, it is perfectly fine to never rent to Jews as long as you don't openly say "no Jews." The net effect of rules like this on attorneys creates something similar. You can do what you want, but if you actually come out and say in writing that you are declining representation due to the prospective client's membership in a protected class, or if you advertise a practice (as in MA) that says "I only represent women," you could get in trouble.

Simply put, the Mrs. Murphy exception recognized that it may be impossible as a practical matter to ban covert bigotry because you simply can't read a person's mind and discern their true motivations. But you can at least ban OVERT bigotry, and thus help the evolution away from such outmoded ideas as the Mrs. Murphies of the world slowly die off. That's what rules like this essentially do with attorneys: allow the covert but ban the overt.

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themapmaster (Dec 11, 2017 - 1:40 pm)

Unless it's affirmative action in law schools and universities discriminating against Asians or whites.

Or big law and mid law discriminating against men because they need more women partners to save face.

Then it's okay.

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maverick (Dec 11, 2017 - 7:53 am)

I used to be Catholic and religious, until I internalized the rules of evidence. Then I realized that 4 affidavits from 2000 years ago amounted to insufficient evidence for me to take on faith.

You can't view marriage as something holy, any more than a LLC is holy. It is a legal construct, a business organization, with real implications upon dissolution. You can't apply religious principals to what we do. What we do is amoral.

I can also confirm that many LBGT, but not all, despise religion. I find their atheism to be just as religious as the evangelical zealot living in the sticks. You profess your faith that God doesn't exist, but you don't really know any better than the religious folk. It's all philosophy to me. You can't prove any of it one way or another.

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junkwired (Dec 11, 2017 - 9:07 am)

For a similar reason I fall under the agnostic-atheism category, although I'll also entertain agnostic-theist beliefs.

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nighthawk (Dec 11, 2017 - 11:37 am)

OP, would you represent a porn shop and gentleman's club? Would you defend them in a litigation? Is helping your friend who LGBT any different? It is the same level of sin where those involved are damned to hell.

It seems to me that it makes more sense for you to do immigration or real estate closings, which will not interfere with your catholic faith.

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thirdtierlaw (Dec 11, 2017 - 11:55 am)

I wouldn't be so sure. Real estate closing can pose an issue if an unmarried couple is purchasing a home to cohabitate. Immigration has all sorts of issues as well, unwed families having babies and are trying to stay, people of other faiths trying to immigrate, etc.

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maverick (Dec 11, 2017 - 3:09 pm)

There is no way to actually live your life as a Christian and interact in any way with the modern, globalized economy. The gas you put in your car is mixed with the blood of innocents and is only obtained by corrupt corporate fascists doing business with equally corrupt banana republics and barbarian states that are the very opposite of Christian. Your mobile phone is made by children working under slave conditions in some southeast Asian, Confucian turdhole. The clothes on your back are manufactured in a similar fashion. You cannot rid yourself of the stain of corruption from this Earth. If you want to be a Christian then get rid of your car, all electronics and appurtenances of modern life, and go and live in the middle of the woods and farm beans. That is, until Uncle Sam storms your land and rips it from you for not paying taxes. At which point you offer yourself up as the sacrificial lamb in a hail of gunfire like Jesus would want. Otherwise, you are just deluding yourself that you are more moral than the next guy.

If there is a hell, then you are just as damned as I am, and no amount of praying or listening to some porn-addled priest bloviate about how we are supposed to love each other on a Sunday will matter. However, I hate to kill it for you, there is no hell, if there is a "hell" then you are worshipping nothing more than an ISIS terrorist who gets off on watching human beings burn. No, what happens after you die is you wake up here and get to pay for all the bad stuff from your last life here, which is going to suck for all of us.

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dopesmokeresquire (Dec 11, 2017 - 5:27 pm)

Oh joy, a recent catholic convert filled to the brim with righteous indignation at all things Un-Catholic. This guy is a dime a dozen. HE even goes to morning weekday mass haha.

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triplesix (Dec 11, 2017 - 6:44 pm)

171

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