## Facts

- Judith Nathanson, a Massachusetts attorney, operated a private law practice and intentionally limited her divorce representation to women.
- She held herself out to the public through general advertising (telephone directories and local newspapers), office signage, and referral sources.
- In 1991, Joseph Stropnicky sought representation in a divorce; Nathanson declined solely because he was a man, stating she represented only women in contested divorces.
- Stropnicky filed an administrative complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging sex discrimination in a place of public accommodation under Mass. Gen. Laws ch. 272, § 98.
- MCAD found unlawful discrimination and ordered Nathanson to cease and desist from refusing to represent men in her legal practice.
- Nathanson sought judicial review in Massachusetts Superior Court under Mass. Gen. Laws ch. 30A, § 14 and ch. 151B, § 6, and moved for judgment on the pleadings to set aside MCAD’s order.

## Issues

1. Whether MCAD had authority to apply Massachusetts public-accommodations anti-discrimination law to an attorney’s client-selection practices, given the judiciary’s role in regulating the bar.
2. Whether a publicly advertised law office constitutes a “place of public accommodation” under Mass. Gen. Laws ch. 272, § 98, making sex-based refusals of representation unlawful.
3. Whether enforcement of the public-accommodations statute against Nathanson violated the First Amendment rights of free speech and expressive association.
4. Whether professional-ethics duties of zealous representation justified a categorical policy of refusing male divorce clients.

## Decision

- The Superior Court denied Nathanson’s motion for judgment on the pleadings.
- The court affirmed MCAD’s decision and cease-and-desist order.
- The court held MCAD had jurisdiction to enforce a generally applicable anti-discrimination statute against a lawyer who offers services to the public.
- The court held Nathanson’s blanket refusal to represent men in divorce matters constituted sex discrimination in a place of public accommodation.
- The court rejected Nathanson’s First Amendment defenses, concluding the statute regulated discriminatory conduct and any burden on expression or association was incidental and justified by the state’s interest in preventing discrimination.
- The court held professional-ethics rules did not excuse noncompliance with statutory anti-discrimination obligations.

## Legal Principles

- Generally applicable public-accommodations anti-discrimination laws may apply to licensed professionals, including attorneys, when they hold their services out to the public.
- A law office that publicly advertises and solicits clients may be treated as a “place of public accommodation” for purposes of Mass. Gen. Laws ch. 272, § 98.
- A categorical refusal to provide publicly offered services based solely on a protected characteristic (sex) constitutes unlawful discrimination, regardless of asserted benign or remedial motive.
- The First Amendment does not bar application of public-accommodations laws to discriminatory denials of service where the law targets conduct rather than speech and any incidental effect on expression or association is justified by the government’s anti-discrimination interest.
- Ethical duties governing competence and zealous advocacy do not create a statutory exemption permitting across-the-board exclusion of prospective clients based on protected characteristics.

## Conclusion

The court upheld MCAD’s cease-and-desist order, ruling that a lawyer who advertises to the public may not maintain a blanket policy of refusing divorce representation to men because such conduct is actionable sex discrimination in a place of public accommodation, and neither the First Amendment nor professional-ethics arguments displaced the state’s anti-discrimination mandate.


Nathanson v. Mass. Comm'n Against Discrimination, No. 199901657, 2003 WL 22480688 (Mass. Super. Ct. Sept. 16, 2003)