Biglaw's Latest Cancel-Culture Controversy
Is expressing support for the SCOTUS decision in Dobbs now a firing offense?
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Another day, another cancel-culture controversy in Biglaw. On Tuesday, Robin Keller, until recently a retired equity partner at Hogan Lovells who was still serving clients, wrote a Wall Street Journal op-ed about how the firm fired her. Her offense? In Keller’s telling, she was terminated because she dared to defend the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and sent abortion back to the states.
After the Court issued its Dobbs opinion in June, Hogan Lovells organized a Zoom call in early July for female employees. Keller joined the call, which mostly involved women expressing anger over Dobbs, and offered a dissenting view:
I noted that many jurists and commentators believed Roe had been wrongly decided. I said that the court was right to remand the issue to the states. I added that I thought abortion-rights advocates had brought much of the pushback against Roe on themselves by pushing for extreme policies. I referred to numerous reports of disproportionately high rates of abortion in the Black community, which some have called a form of genocide. I said I thought this was tragic.
To say these remarks did not go over well would be a massive understatement. The speaker after Keller condemned her as a racist and told her to leave the meeting, other participants said they “lost their ability to breathe” after her comments, and yet another attendee told Kathryn Rubino of Above the Law (“ATL”) that she was “traumatized and hurt” by what Keller said.
At the time, Hogan Lovells issued a statement to ATL condemning what some call participants called the “inappropriate” and “offensive” remarks of Keller, who was suspended pending an investigation by outside counsel. At the investigation’s conclusion, Keller was told that her comments violated the firm’s anti-harassment policy, and she was fired. Here’s what Keller concluded about the controversy:
The response of the rabidly anti-Dobbs participants on the call wasn’t surprising. What was shocking, at least to me, was how eagerly Hogan Lovells kowtowed to a woke faction inside its workforce. Several women on the call—as well as male lawyers at the firm—contacted me later to offer private support for my right to express my views. Those former colleagues must now realize that they are in a hostile work environment. If this could happen to me, anyone who expresses a disfavored opinion—even on a matter of law—can expect the same treatment: immediate cancellation without concern for client interests, due process, or fairness.
I reached out to the firm to see if it had any comment on Robin Keller’s WSJ op-ed. Through a spokesperson, Hogan Lovells said this:
As a firm we fully encourage our people to share their views on important issues that matter to them, but we expect our people to conduct themselves in accordance with firm policies. We value our differences, which make us stronger as a firm.
In terms of “firm policies,” Keller was told she violated the anti-harassment policy with her “genocide” comments. But did she? I’m not certain she had the intent of a harasser, i.e., I’m not sure she intended to humiliate or offend. Instead, it’s possible she started off expressing a fairly mainstream view—specifically, that Dobbs is defensible, which more than 40 percent of Americans believe—but got carried away, to the point where she said some things that subjectively offended people on the call.
How objectively offensive were Keller’s comments? Some critics said she was accusing individual Black women who have abortions of being “genocidal,” but that might be an overly aggressive reading. Keller claims in her WSJ piece that she was simply citing both white and Black writers who have argued, from a pro-life perspective, that abortion is especially harmful to the Black community, since abortion rates are higher among Black Americans. Black commentators who have made this or a similar argument include Justice Clarence Thomas, Jason Riley, Glenn Loury, Carol Swain, and Jesse Jackson (before his reversal on the issue).
But even if Keller didn’t engage in “harassment,” perhaps she can be faulted on other fronts. Some Hogan Lovells sources contacted me to argue that even if you don’t think her comments were racist, this forum was explicitly advertised as a way for female attorneys to share their worries and fears following Dobbs. To join that call and to say what Keller said, with feelings that raw, exhibited poor professional judgment and was unwise and inconsiderate, they said. And I wouldn’t be surprised if Keller herself wishes she had made her points in a less incendiary manner, since the reference to “genocide” surely distracted from the substance of her remarks.
In addition, tipsters told me, Keller’s “firing” wasn’t a huge deal. “Senior counsel” at Hogan Lovells are retired partners who agree to maintain client relationships, take meetings, and dispense wisdom to the younger generations, in exchange for modest compensation, an office, and a firm email address. But from a business standpoint, my sources said, it wasn’t hard for the firm to choose between (1) severing ties with an at-will, part-time former partner, and (2) outraging a significant number of the firm’s U.S.-based women lawyers.
But let’s move on from Robin Keller. As I commented on Twitter, I’m not going to die on the hill of defending her specific, admittedly controversial comments—because I don’t need to. What happened to her is not an isolated incident, and regardless of your views on L’Affaire Keller, the issue is much larger.
After Keller’s op-ed was published, I heard from a Biglaw equity partner who’s in the process of parting ways with her firm after she refused to embrace the post-Dobbs order. Because she’s in the delicate process of negotiating her exit, she asked me not to name her firm or office (although they are known to me), and I did not contact the firm for comment. She does not want the firm to know she’s speaking to the media, for obvious reasons (and the firm is suffering no reputational injury anyway, since I’m keeping it anonymous). [UPDATE (2:31 p.m.): As I mentioned to a Twitter skeptic, emails and other documents support this partner’s account of events—although I’m obviously not going to post them here.]
Here’s what happened, according to this partner. After she declined to take on pro-bono work of a pro-choice bent or to get involved in other reproductive-rights initiatives post-Dobbs—saying she was too busy, not mentioning any opposition to abortion or to Dobbs—her office managing partner asked her, “Am I correct in assuming you’re pro-life?” After she didn’t deny this (because she actually is pro-life), he called her racist (because of the disproportionate impact of Dobbs on minority communities), let her know she was not going to be working with his clients, and started undermining her in various ways, large and small.
It became increasingly difficult for this partner to build her practice without the support of leadership. Eventually she was told she was not a good fit for the firm, despite her large book of business. The firm initially offered a few flimsy pretexts for firing her, which it eventually abandoned after they were refuted by this partner and her counsel. Because both sides now acknowledge that she is not being terminated for cause under the partnership agreement, she is being paid a seven-figure sum to leave. Credit where credit is due: the firm is willing to put its money where its mouth is when it comes to its social-justice commitments, showing the door to a profitable partner because it sees her views as unacceptable.
Some might be skeptical of this account, but in the current day and age, I’m not surprised. In a poll yesterday, I asked: “Should telling co-workers that you support the #SCOTUS decision in Dobbs be a firing offense in Biglaw?” Most respondents said no, but 25 percent said yes. The office managing partner who fired my source because she refused to get with the post-Dobbs program simply falls into the 25 percent.
Based on how Biglaw firms in general have reacted to Dobbs, I know some firm leaders feel very, very strongly about the wrongness of the decision—and believe it’s imperative for their firms to take a stand. On the Hogan Lovells call that Keller participated in, partners exhorted female associates to speak out, sign petitions, and pressure male associates to sign petitions against Dobbs. For many Biglaw leaders, standing on the sidelines during a time of crisis for women is not an option. As PR expert Terry Isner of Jaffe put it to Aebra Coe of Law360, “We can no longer take a neutral position. We are expected to stand for something. And the talent, clients, and partnerships we look to align with want to know and see this in action.”
Could there be other factors at play in this partner’s firing besides Dobbs? Absolutely; Biglaw partnership politics is often a game of three-dimensional chess. Is the situation odd, even anomalous? Perhaps—and it might not have happened at many other firms, or maybe even another office of this firm. But I don’t doubt the basic accuracy of my source, who is someone I have known for years, and I don’t doubt that her pro-life views contributed to making her persona non grata at her soon-to-be-former firm.
I don’t know if I’m entirely there yet, but I think I’m coming around to the following view: Biglaw isn’t a big tent, and it’s naive, maybe even downright silly, to believe otherwise. It’s fine to be economically or fiscally conservative—Biglaw defends Big Business, after all—but there is increasingly no place for social conservatives in many large law firms, as well as elite circles more generally.
Would we be surprised or troubled if a progressive boutique like Kaplan Hecker & Fink or Gupta Wessler parted ways with a lawyer who publicly said something conservative and controversial? Of course not. And these days, thanks in large part to pressure from their socially conscious clients, Am Law 100 firms aren’t all that different.
So the next time a Biglaw firm sends partners packing because of their views on social issues like guns or abortion, perhaps we should dispense with the handwringing. Instead, maybe we should shrug our shoulders and say, channeling Chinatown, “Forget it, Jake. It’s Biglaw.”
Some Keller critics, like Kathryn Rubino of ATL, argue that “it is dangerous to assert that just because a statement has been repeated within the right-wing echo chamber makes it acceptable.” But as I’ve made clear in these pages, I prefer to have a bigger rather than smaller Overton window. I will leave it to you, my readers, to decide what lies outside the bounds of acceptable discourse.
Sometimes critics of the cancel-culture concept try to get rhetorical mileage out of citing the privilege of the “canceled” and mocking them as “self-appointed martyrs.” I see their point, at least in this case: Robin Keller doesn’t need this job, and after more than 30 years at Hogan Lovells and Stroock, she certainly doesn’t need the money. And she even got a coveted placement in the Wall Street Journal opinion pages from the whole episode. As one source of mine quipped, “There are think-tankers out there who would give a left arm for a WSJ op-ed placement, and Keller gets it for an incident that happened in July?”
So I’m not shedding tears for Keller. In my view, the problem with cancel culture is less about the individual injustices visited upon the canceled and more about how discourse is harmed when disproportionate consequences are inflicted upon people for expressing unpopular opinions. That leads to self-censorship, impedes learning, inhibits the search for truth, interferes with democratic self-governance, and ultimately harms all of us.
And you know what? Law firms, corporations, and private universities have free-speech and free-association rights under the First Amendment to operate and hold themselves out as Social Justice Warrior LLP, Woke Inc., and PCU.
But here’s the thing: as Judge Elizabeth Branch (11th Cir.) responded when I raised this point last night at the (excellent) Buckley Program event she did at Yale with Judge James Ho (5th Cir.) and Professor Akhil Amar, institutions should at least be honest about their views, so people know what to expect going in. Problems arise, Judge Branch maintained, when left-wing institutions try to present themselves as something else, and non-left-wing individuals act in reliance on those representations. See, e.g., law schools that profess a “clear and unwavering” commitment to free speech but then go all “Trap House” on their students, or law firms that claim to “fully encourage our people to share their views on important issues that matter to them” but then fire partners who voice pro-life opinions.
I admire Munger Tolles & Olson for many reasons (“MTO”), so let me hold up MTO as a positive example here. At the top of its homepage, the firm touts an American Lawyer article describing the firm as “progressive—perhaps radically progressive.” I don’t know how long Munger has had this language featured so prominently on its website. But if a right-wing lawyer joined MTO after this self-branding, got fired for publicly expressing conservative views, and then complained of “cancellation,” I might say to this person, “You walked into the lion’s den—are you really surprised that you got eaten?”
[UPDATE (12/7/2022, 11:46 p.m.): I received the following message from Brad Brian, a leading trial lawyer and chair of Munger, Tolles & Olson: “We appreciate the positive statements about our firm in your recent article. However, I do want to provide you with additional context about the “progressive—perhaps radically progressive” language on our website that you have quoted. That comment is from an Am Law article (link here) addressing our governance structure and the firm’s diversity and support for work-life integration; it is not a reference to the politics of our colleagues. We see now how this quote could be interpreted incorrectly and will explore how to address this further going forward. But, to be clear here, neither we nor Am Law (we are most confident) meant the quote to have the meaning you appear to ascribe to it. To the contrary, we are proud that our firm is made up of lawyers with a variety of political perspectives. Diversity has always been a cornerstone of our organization, and we strongly believe that a diverse and inclusive workforce—including respect for differing political viewpoints—allows us to better serve our clients and support one another.”]
[UPDATE (12/2/2022, 8:16 a.m.): Regarding Munger Tolles, whose main offices are in Los Angeles and San Francisco, a reader pointed out to me that California law prohibits employers from “[f]orbidding or preventing employees from engaging or participating in politics” and “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees.” MTO also has a small office in Washington; under D.C. law, employers cannot discriminate against employees based on “political affiliation.” So it might violate California or D.C. law for Munger to fire all its Republican lawyers tomorrow. But
most many jurisdictions, as well as the federal government, do not have laws along these lines (although some commentators, such as Vivek Ramaswamy and Professor Jed Rubenfeld in this Wall Street Journal op-ed, argue that they should). So my general point still stands: most many employers remain free to discriminate based on political considerations, and personally speaking, I’m not sure I’m that troubled.]
[UPDATE (12/2/2022, 10:30 a.m.): For folks who are interested, Professor Eugene Volokh has put together this excellent compilation of state laws regulating what employers can do vis-a-vis private employees’ speech and political activity. These statutes are more widespread than I realized; per Professor Volokh, “[a]bout half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation.” I have therefore changed “most” to “many” in my earlier update—i.e., many jurisdictions don’t have these laws, and many employers remain free to discriminate on these grounds.]
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This was absolutely fascinating to me and thank you for this reporting. I left big law about 15 years ago to start my own small boutique firm with a few other people. This makes me incredibly glad that I did.￼
As for the hysteria over the Dobbs decision, I count myself amongst that group who is pro-choice but who has longed to see the decision overturned because it seemed to be based on such faulty￼ reasoning and tantamount to judges legislating policy. I have listened to the oral argument in the Dobbs case, and the premise of the argument was that such an important and complicated issue should be returned to the democratic process. ￼￼The notion that it would violate some firm's harassment policy to expess such an opinion is just insanity to me. I don't see how people purporting to be critical or logical thinkers can operate this way.
I'm also just surprised by the intolerance for other viewpoints these accounts reflect. I have radically different political opinions than my three law partners--I'm much more conservative--and while sometimes that is irksome to me because I just don't understand their way of thinking, the idea that the arrangement is so intolerable that I cannot practice law with them doesn't really cross my mind. I have respect for them as lawyers and we are not politicians or policymakers￼￼.
By trying to ensure that everybody in your law firm thinks the same way, I don't see how this is really helping with the zealous advocacy of clients. Different ways of thinking and different perspectives tend to bring out different legal arguments and approaches, and that's a good thing in a law firm￼.
David, you do a remarkably good job of covering the issue. I appreciate and am grateful for that because regardless of one's personal feelings on this matter or countless other social issues, the way to learn, to grow, and to be a better advocate for whatever side you believe in is to understand the nuance of both sides and the arguments for and against. This piece, as several previous articles you have written have also done, illustrates a symptom of a larger issue - a seemingly growing intolerance for views that differ from one's own. You need not agree with everything someone else believes in to have a relationship with them business or otherwise. Too often we all seem to engage in knee-jerk reactions to an issue without much further thought.