Jenna Greene, Legal Columnist for Thomson Reuters, takes a look at the many instances of law firms and lawyers loudly criticized by the left for the work they take on and wonders how firms should respond to such pressure.
As demonstrators last week marched to the offices of King & Spalding in Washington, D.C., I had a sense of deja vu.
Along with Jones Day and Porter Wright Morris & Arthur, the firm has been targeted by activists for its work on behalf of the Trump campaign, never mind that it was a low-profile pre-election challenge involving the deadline for mail-in ballots in North Carolina.
In recent years, we’ve seen multiple instances of law firms and lawyers loudly criticized by the left for the work they take on. Examples include Paul, Weiss, Rifkind, Wharton & Garrison for representing ExxonMobil in climate change litigation; Morgan, Lewis & Bockius for serving as Donald Trump’s tax counsel; and David Boies for his work on behalf of former film producer and convicted sex offender Harvey Weinstein.
How should firms respond to such pressure? Are they damned if they drop the client and damned if they don’t?
There are no easy answers, law firm PR expert Elizabeth Lampert told me. “You can definitely expect peer-to-peer persuasion to continue and even escalate. For law firms under attack, this can be daunting.”
It’s a trend that I trace in part to 2011, when King & Spalding was first on the hotseat for a controversial representation.
Former partner and appellate superstar Paul Clement agreed to defend the constitutionality of the Defense of Marriage Act — the statute that denied federal benefits to married same-sex couples — before the U.S. Supreme Court.
In the face of fierce criticism from gay rights organizations and some of the firm’s own attorneys, King & Spalding quit the case – and Paul Clement quit the firm. He decamped to form appellate boutique Bancroft, which was acquired by Kirkland & Ellis in 2016.
“I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters,” Clement wrote when he left King & Spalding.
Clement declined to be interviewed for this column, as did King & Spalding chairman Robert Hays.
It’s easy for me to see both perspectives.
On one hand, lawyers shouldn’t dump their clients when the going gets tough (even if as in the gay marriage case, the withdrawal was court-approved and didn’t leave the client without adequate counsel). As the National Rifle Association put it when it fired King & Spalding in the wake of Clement’s departure, outside counsel should “zealously advocate for our interests and not abandon the representation due to pressure from those who may disagree with us.”
But what if continuing the work conflicts with a firm’s deeply held values, such as a commitment to LGBTQ rights? How can you set that aside?
Or as a Jones Day associate objecting to the firm’s work for the Trump campaign’s election challenges said last week in a reply-all email, “We as lawyers choose our clients and our causes. We choose what we stand for. And this project, I submit, should not be one of those things.”
Jones Day and Porter Wright representatives did not immediately respond to requests for comment.
To Richard Levick, the head of public relations and crisis communications firm Levick, the increased prevalence of law firms getting called out for their work reflects profession-wide shifts in the last 25 years.
“Law firms have become multi-billion-dollar corporations, and they should expect to be treated like it,” he said. That includes greater public scrutiny.
Before firms find themselves in the eye of a PR storm, Levick told me it’s key to consider the ramifications of a representation up front. He added, “The best time to handle a crisis is before it occurs.”
Levick’s also quick to distinguish between civil and criminal cases (no one can reasonably accuse a lawyer who is defending a murderer of being pro-murder), as well as offensive and defensive filings.
When the litigation is offensive, as with the election suits, the firms made a choice to get involved, Levick said, and the lawyers should have known what they were getting into when they went to bat for the Trump campaign. “This was eminently foreseeable,” he said. “They knew who their client was.”
Six months ago, he continued, the firms should have “been asking themselves ‘If this happens, what would we do?'”
Lampert has some advice for how firms in such situations might respond…Read more