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.
Hypothetically, if the partner in the second case you describe was Catholic, and when asked “Am I correct in assuming you’re pro-life?” she responded, "I am Catholic, and I follow the teaching of my church, so yes, I am pro-life" would she have a case against the firm for employment discrimination based on religion?
I think that attorneys who expressed agreement with Judge Luttig's statement that Donald Trump is a "clear and present danger" to the Constitution (https://www.youtube.com/watch?v=jzLNIDrjo-w) while they were employed by Jones Day or the Dhillon Law Firm should not be surprised if that expression led to their termination. My point is, there are a number of Big Law and Boutique firms where Right Wing views are not only welcomed, but required.
Suppose a big-law firm says publicly that it is willing to hire Republicans, and then when it finds out an associate is a secret Republican, fires that associate. Would that be fraud? Could the associate secure expectation damages, including the expected value of becoming a partner?
As you say, if a law firm says "We don't hire Republicans or conservatives," that would be perfectly legal (unless, perhaps, that was a covert way to avoid hiring Asians).
>> 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.”
I'm struggling to grasp the use of "echo chamber" as a pejorative in the course of explicitly endorsing a workplace norm of staging conversations on political topics in which everyone is expected to express the exact same opinion and disagreement is considered an firing offense.
Does it matter why the SCOTUS ruled as they did in Dobbs? Suppose the decision turned on the religious beliefs of the justices, rather than legal argument and analysis? Would our attitude towards this decision be affected, even if the reasoning of the controlling opinion withstands all scrutiny?
With regard to "expressing support for the SCOTUS decision in Dobbs," does the reason for such support matter? My own opposition to the Dobbs decision is compounded of support for abortion rights and doubts about the motivations for the decision.
When we're talking about a retired partner who is being asked to not associate with the firm anymore it's pretty shrug-worthy but it seems to me that firing somebody actually representing clients over an expressed legal view is not fair to the clients if the firing could result in a termination of representation. That said, I think most people would argue that there is a line somewhere where expressing a legal view could cross over into harassment -- say gathering racial minority employees together and regaling them about how segregation should come back -- but I doubt this crosses that line.
Political views aren't protected in the employment context (although in NY and a few other jurisdictions political campaigning is) and partners AFAIK aren't protected at all, but it's a separate question whether firing somebody over heterodoxy is a good idea for a firm. I doubt it.
How is “ we don’t hire Republicans “ or “ we don’t hire Democrats “ any different from “ we don’t hire Jews” or “ we don’t hire Muslims?” I know political beliefs are not constitutionally protected but the essence is the same: discriminating against someone for their moral belief system. Therefore shouldn’t it be considered just as odious to discriminate against people in employment based in their party affiliation and at least contrary to the ethics rules governing the practice of law? I fail to see how you think this is OK.
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.
I tire of the double standards.
Hypothetically, if the partner in the second case you describe was Catholic, and when asked “Am I correct in assuming you’re pro-life?” she responded, "I am Catholic, and I follow the teaching of my church, so yes, I am pro-life" would she have a case against the firm for employment discrimination based on religion?
I think that attorneys who expressed agreement with Judge Luttig's statement that Donald Trump is a "clear and present danger" to the Constitution (https://www.youtube.com/watch?v=jzLNIDrjo-w) while they were employed by Jones Day or the Dhillon Law Firm should not be surprised if that expression led to their termination. My point is, there are a number of Big Law and Boutique firms where Right Wing views are not only welcomed, but required.
Suppose a big-law firm says publicly that it is willing to hire Republicans, and then when it finds out an associate is a secret Republican, fires that associate. Would that be fraud? Could the associate secure expectation damages, including the expected value of becoming a partner?
As you say, if a law firm says "We don't hire Republicans or conservatives," that would be perfectly legal (unless, perhaps, that was a covert way to avoid hiring Asians).
>> 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.”
I'm struggling to grasp the use of "echo chamber" as a pejorative in the course of explicitly endorsing a workplace norm of staging conversations on political topics in which everyone is expected to express the exact same opinion and disagreement is considered an firing offense.
Does it matter why the SCOTUS ruled as they did in Dobbs? Suppose the decision turned on the religious beliefs of the justices, rather than legal argument and analysis? Would our attitude towards this decision be affected, even if the reasoning of the controlling opinion withstands all scrutiny?
With regard to "expressing support for the SCOTUS decision in Dobbs," does the reason for such support matter? My own opposition to the Dobbs decision is compounded of support for abortion rights and doubts about the motivations for the decision.
" In Keller’s telling ..."
I knew I could stop reading there.
When we're talking about a retired partner who is being asked to not associate with the firm anymore it's pretty shrug-worthy but it seems to me that firing somebody actually representing clients over an expressed legal view is not fair to the clients if the firing could result in a termination of representation. That said, I think most people would argue that there is a line somewhere where expressing a legal view could cross over into harassment -- say gathering racial minority employees together and regaling them about how segregation should come back -- but I doubt this crosses that line.
Political views aren't protected in the employment context (although in NY and a few other jurisdictions political campaigning is) and partners AFAIK aren't protected at all, but it's a separate question whether firing somebody over heterodoxy is a good idea for a firm. I doubt it.
How is “ we don’t hire Republicans “ or “ we don’t hire Democrats “ any different from “ we don’t hire Jews” or “ we don’t hire Muslims?” I know political beliefs are not constitutionally protected but the essence is the same: discriminating against someone for their moral belief system. Therefore shouldn’t it be considered just as odious to discriminate against people in employment based in their party affiliation and at least contrary to the ethics rules governing the practice of law? I fail to see how you think this is OK.