Gay lawyers say North Carolina’s climate is better but not perfect

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By DIANA SMITH, Staff Writer

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Dan Ellison graduated from UNC Law School in 1984 with the same anxiety about passing the bar exam that all lawyers-to-be face at the beginning of their careers.

But it wasn’t just a commonplace case of the nerves for him.

On the contrary, he faced a worry that an unknown number of his classmates might have faced at the same time – whether being gay would affect his ability to become an attorney in North Carolina.

“Law school at that time was still a pretty much ‘in the closet’ type of place for most people around here,” said Ellison, who runs a solo practice in Durham. “It was unclear as to whether being gay would actually be an issue for passing the [character and fitness] review from the Board of Law Examiners.”

Former state legislator and attorney Sharon Thompson added that there was a perception that it was “criminal to be gay” because of the state’s crimes against nature statute.

But times have changed, and in many ways for the better, according to Ellison, Thompson and other gay attorneys in North Carolina.

They say that attorneys’ attitudes about the lesbian, gay, bisexual and transgender communities are – for the most part -more positive than in years past.

Evidence of improvement can be seen in the increasing calls for diversity of all sorts in law firms, said Ellen W. “Lennie” Gerber, a 74-year-old High Point attorney and one of the founders of the N.C. Gay Advocacy Legal Alliance, formerly the N.C. Gay and Lesbian Attorneys Association.

Since 1994, NC GALA has worked to establish a support network for LGBT lawyers and holds CLEs about the unique aspects of representing LGBT clients.

It also provides a resource directory on its website for members of the public who are looking for lawyers that are sensitive to the needs of the LGBT community – something that wasn’t always easy to find.

Gerber, who has been with the same partner for 44 years, recalled going to supper with attorneys from a large firm in the 1980s.

“They didn’t know I was gay, of course, and they were talking about how they would never have a gay attorney in their firm. I already knew there were,” she said. “And then some years later, they were actually hiring someone to be head of diversity and proudly talking about their gay attorneys. It was such a big change.”

Indeed, local bars and the American Bar Association have been spotlighting the need for greater diversity in the profession for years, particularly when it comes to women and minorities.

Less reported has been an examination of diversity when it comes to sexual orientation, particularly because sexual preference cannot be recognized visually.

“I think the problem is one that every other group that has experienced discrimination faces, and that is you just don’t know,” said Samuel Johnson, a Greensboro attorney and NC GALA board member.

“We certainly have gotten to the point in many places around the state where everybody is going to pay lip service to nondiscrimination. Everybody’s going to say race doesn’t matter, gender doesn’t matter, sexual orientation doesn’t matter, and you just don’t know,” he said.

Discrimination questions have come to the forefront in North Carolina’s legal circles over the past year as the State Bar wrestles with a controversial proposal to add a nondiscrimination clause to the preamble of the Rules of Professional Conduct.

The amendment includes language that, among other categories, says lawyers should not discriminate based on sexual orientation.

That roused concerns among some practitioners about whether they could become subject to discipline if they declined representing an LGBT client.

The Bar has repeatedly responded that the amendment should be viewed as an aspirational goal, not a basis for discipline. The amendment was sent back for revision at the Bar’s quarterly meeting last month.

“It’s a funny mixture where I feel like 90 percent we’ve arrived, but the 10 percent that’s lurking around that you never know is there – and can’t know – is what worries you,” Johnson said.

That’s particularly true when it comes to client representation.

Unique needs

When NC GALA was formed, one of its biggest missions was to educate lawyers about the unique aspects of representing LGBT clients.

That’s because attorneys were not as well-informed about legal intricacies that come up for LGBT clients in areas such as wills and estates, powers of attorney, real estate and family law, association members said.

“A lot of what I do is correct other attorneys’ mistakes,” said Thompson, who was NC GALA’s first president. “Lawyers might not have thought through something or have had an incorrect assumption, for example, about how you can own real estate. In many cases, lawyers don’t consider the tax consequences, which are extremely different if you are married or not married.”

North Carolina does not recognize gay marriage or other types of civil unions.

Also, fear of discrimination in the courts was such a big concern over the decades that LGBT clients often neglected to mention their sexual orientation to their attorneys – even to the detriment of their own cases.

Alternately, if the client was openly gay, attorneys might try to use that as leverage in litigation.

NC GALA organizers recognized “there was a need to tell people that this was not an acceptable negotiation strategy,” Thompson said.

Since that time, CLEs have helped address those gaps in awareness. Now, practitioners frequently talk about how the law applies to “nontraditional clients” or “special cases” during seminars, Thompson said.

With topics like gay marriage and employer-provided domestic partner benefits regularly making headlines, lawyers’ knowledge base will need to keep expanding, Gerber added.

It also means they will need to hone their communication skills so that they are comfortable talking with LGBT clients – and asking them if they are gay if it is pertinent to the representation.

While NC GALA still sees itself as a support network for attorneys, its focus is shifting more towards education as its members feel that, generally speaking, they find a friendly reception from fellow members of the bench and bar.

“After I retired, I took on a few appellate cases,” said Gerber. “One of my best moments came when I stood up in the state Supreme Court and said, ‘May it please the court, I am Ellen Gerber from the N.C. Gay and Lesbian Association representing the defendant.’ I felt so proud that I could stand before them say that to a packed courtroom.”