More Thoughts On Intellectual Diversity In Biglaw
Aren't imaginary conversations fun?
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I recently published an essay in the Boston Globe about the need for greater diversity of viewpoint in the world of large law firms aka Biglaw (which you can read here if not a Globe subscriber). My basic argument: Biglaw firms are largely left-leaning, and this ideological uniformity is not good—not for lawyers, law firms, and the rule of law.
I didn’t think this would be controversial, but I was wrong. I got lots of pushback—in comments on the Globe website, on Twitter, and from Joe Patrice of Above the Law and Jay Willis of Balls and Strikes. Last week, I mentioned that I’d address these critiques in a follow-up post; here it is.
Rather than engaging in snarky fisking—which I used to do at Above the Law, not so much now—I’m going to try something different. As my longtime readers know, I’m a big believer in civil discourse. So rather than caustically calling out individual critics, I’m going to respond to them collectively, through an imaginary dialogue between me and a friend (who will stand in for my critics, articulating the main arguments made in response to my piece).
Why are you even writing an op-ed titled “Big Law Cancel Culture,” in light of all the other problems the world faces? Are we really supposed to feel bad for multimillionaire partners like Paul Clement, who must now make his millions at his own firm rather than Kirkland & Ellis?
As I previously explained, the “Big Law Cancel Culture” title was chosen by the Globe, and I would have gone with something different. One problem I have with the term “cancel culture” is that it focuses too much attention on the supposed plight of the “canceled.” Yes, Paul Clement is going to be just fine, but this really isn’t about him.
As I’ve argued before, the problem with cancel culture is less about any individual injustices visited upon the canceled and more about what the rest of us lose out on when we live and work in environments where almost everyone thinks alike. This has been pointed out numerous times, but maybe more of us wouldn’t have been shocked by the result of the 2016 presidential election if we didn’t live in ideological bubbles.
I acknowledge that the problems of Biglaw are not, in the grand scheme of things, very big; they just happen to be what I’m well-situated to write about, given my professional background and network. But as lawyers, we should still care about what happens in Biglaw firms, given their power and prestige as institutions, as well as their role in setting norms for the rest of the legal profession.
Regarding your premise, how can you say with a straight face that Biglaw is “liberal”? These firms are paid billions to represent the world’s biggest, richest, most powerful—and often morally suspect—corporations.
A fair point. I should clarify—and admittedly could have been clearer in the piece—that the disfavored ideology in Biglaw is social conservatism, on the so-called “God, guns, and gays” issues. As someone who has been covering Biglaw for decades, I’m well aware that large law firms work to protect entrenched economic interests (limited pro bono work in the other direction notwithstanding).
You focus on social conservatives, but aren’t hard-core leftists unwelcome in Biglaw too? You can’t be a radical environmentalist in a firm that defends (alleged) polluters. Or a Bernie Sanders or AOC-style socialist in a firm that does private-equity deals, helping the rich get richer.
I don’t disagree—and I think it would be great if more Bernie Sanders and AOC types worked in Biglaw. The ones I know don’t want to work in Biglaw—they get their Skadden Fellowships, then spend their entire careers in public interest—but I think it would be great if more of them went to Biglaw, which they could enrich with fresh and valuable perspectives.
Fun fact: Chancellor Kathaleen McCormick of Delaware Chancery, the top judge on the nation’s top court for corporate law, worked at Legal Aid before joining Young Conaway Stargatt & Taylor, a leading corporate law firm. I suspect that as a former legal-aid lawyer, she brought interesting insights to Young Conaway and its work for large companies, which made her a better lawyer and Young Conaway a better firm.
Even limited to social issues, what evidence do you have that Biglaw is liberal?
This is an empirical issue, so there’s research on it. Perhaps the most well-known study is a 2015 paper, The Political Ideologies of American Lawyers. Professors Adam Bonica, Adam Chilton, and Maya Sen found that lawyers in private practice, taken as a whole, “have liberal-leaning distributions,” and the most liberal subset of all are “attorneys who work at one of the twenty-five largest law firms.”
More recently, in a 2021 analysis, Professor Derek Muller reached essentially the same conclusion. After examining the partisan distribution of campaign contributions by donors at Am Law 100 firms, he found that “[m]any firms had fewer than 10 percent of contributions go to major Republican outlets, a handful had at least 25 percent, and just three crossed 50 percent.” (If you’re aware of scholarly literature that reaches contrary conclusions about the political views of Biglaw lawyers, please send my way; I’m very interested in this topic.)
Haven’t you heard of Jones Day?
I’m not sure that citing a single firm can refute studies by political scientists and law professors based on hundreds of firms, but as it turns out, I am aware of Jones Day. In fact, I was one of the first to write about the firm’s decision to represent the Trump campaign in 2016—so early to the story that one Jones Day lawyer told me, “If you’re wondering why there hasn’t been more of an associate outcry, it has a lot to do with the fact that most of us are learning this for the first time reading it on your website.”
Why did so many Jones Day lawyers complain to me about their firm’s decision to work with Donald Trump in 2016? Because even Jones Day isn’t that conservative. The Bonica/Chilton/Sen survey found that although Jones Day was the most conservative of the Vault 20 (the 20 most prestigious law firms), its overall ideological score is still “a slightly liberal score, roughly comparable to that of Democratic West Virginia Senator Joe Manchin (–0.13).”
Has Jones Day shifted right since the Bonica/Chilton/Sen survey in 2015? Probably, since some left-leaning lawyers quit the firm over Trump work. But even in Muller’s 2021 analysis, more than 75 percent of Jones Day campaign contributions went to Democratic rather than Republican candidates—and remember, that’s at Jones Day.
Even conceding that Jones Day is conservative, how many other conservative firms are there in Biglaw? Barnes & Thornburg? Kasowitz Benson? (And Kasowitz is no longer in the Am Law 100, but we can still consider Am Law 200 firms to be “Biglaw.”)
Even if I grant you 19 more Jones Days in the Am Law 100—which I actually don’t think there are—that would mean some 80 percent of Am Law 100 firms are liberal. So it’s fair to write, as I did in my piece, that “large law firms are overwhelmingly liberal.” (I did not write “universally” liberal, and I explicitly acknowledged exceptions, including but not limited to Jones Day; please feel free to mention other conservative firms in the comments.)
Very well. Let’s say, for the sake of argument, that Biglaw is strongly liberal on social issues, and some conservative Biglaw attorneys are pressured into leaving because of their views.
I’d then say: so what? As private businesses, law firms can hire and fire based on politics. Social conservatism is not protected under Title VII.
True. And as I said on Twitter, I oppose proposals to make political opinion a protected category in employment law, since doing so could unleash a torrent of dubious lawsuits and threaten First Amendment association rights. We have the freedom to associate with people who share our political, religious, or cultural beliefs, and we have the freedom not to associate with people whose views we find abhorrent.
But just because something is legal does not make it a good thing. And for the reasons explained in my op-ed, I don’t think it’s a good thing to fire or otherwise show hostility toward colleagues whose views on social issues differ from your own.
This next observation is quite banal, but the fact that I need to say it is a sign of the times: based on my years at Above the Law, having colleagues who disagreed with me forced me to sharpen my thinking and hone my arguments, and it also made for a more fun and interesting workplace. Water-cooler or lunch conversations are more enjoyable and engaging when the participants don’t agree on everything. (Alas, conversations about politics are much more fraught and tense than they used to be.)
Some of what you describe is the result of law firms responding to pressures from corporate clients. In this day and age, large companies don’t want to work with law firms that represent repugnant clients or causes—which is entirely understandable. Shouldn’t law firms listen to their clients?
I agree that significant pressures come from clients. When I reported on Paul Clement’s departure from Kirkland, I noted that it was after super-lucrative clients on the transactional side complained about his work for gun rights.
But now it’s my turn to say: so what? As lawyers well know, just because your client asks you to do something doesn’t make it right.
Interestingly enough, many of the folks making this “obey the corporations” argument don’t hold corporate America in particularly high esteem, which is why it’s odd to see them defending the companies here. I’m more pro-business than many of my lefty critics, but that doesn’t preclude me from calling out corporations when they act badly. If anything, I’d argue that my willingness to acknowledge the good that large companies do gives me greater credibility when it comes to criticizing them.
Corporate America is not above reproach. Some accuse corporations of caving to the “modern woke-industrial complex,” while others claim that corporations tout social-justice initiatives to distract from or conceal their role in promoting economic inequality. These are arguments for another day. For present purposes, it’s enough to say that the client might not always be right.
I’d like to follow up on that. It’s easy for an armchair observer like you to tell Biglaw firms to say goodbye to their clients, since you’re not the one sacrificing millions in legal fees. Why can’t law firms do a cost-benefit analysis and make a rational business decision about which side their bread is buttered on?
The “firms are acting rationally to maximize their revenue” argument reminds me of the famous line from The Godfather: “It’s not personal, it’s strictly business.” But should law firms should be taking their ethical cues from the Mafia?
If firing conservative lawyers (1) is unfair to those individual lawyers, (2) hurts your firm’s ability to effectively represent its clientele as a whole, and (3) makes your firm a less interesting and enjoyable place to work, does it suddenly become the right thing to do simply because a client asked for it? As long as they’re being effectively represented, why should clients have the right to dictate internal law firm policy?
When one prominent chief legal officer urged law firms to bring their people back to the office, he got roundly criticized. When Elon Musk told Cooley to fire an associate because of that associate’s prior work at the SEC on a Musk matter, Cooley said no, and it received praise.
As Ralph Baxter, former chairman and CEO of Orrick, said at the time, “To be a great law firm, you must organize it and lead it in a way that is principled. You simply can’t permit outsiders, even clients, even highly valued clients, to dictate how you run the law firm.” Or as Paul Clement said on my podcast, “Nobody would go to their doctor and say, ‘I really don’t like the fact that you’re treating this other person for their cancer because they’re a scumbag and I hate them.’ And I really think lawyers ought to have the same approach, which is that one client doesn’t get to dictate which other clients you can represent.”
When clients make unfair demands and law firms accede to them, it only encourages clients to issue more such demands in the future. But if law firms stand firm, politely but firmly denying the requests, clients will be less inclined to make unreasonable requests—and more inclined to respect their firms.
It’s not just about clients; it’s also about talent, which is the lifeblood of law firms. Many talented lawyers, especially young lawyers, care deeply about social-justice issues. They don’t want to work with a bunch of racists, sexists, and homophobes. Is that so wrong?
We need to define our terms. What makes someone a racist, a sexist, or a homophobe?
Obviously a law firm can—and should—fire an employee who mistreats colleagues based on their race, sex, or sexual orientation. But does opposing affirmative action make you a racist? Does agreeing with the Supreme Court’s decision in Dobbs, overruling Roe, make you a sexist? Does questioning the participation of transgender athletes in girls’ sports make you anti-LGBTQ?
My own inclination is to say no, not necessarily. And my personal preference is to err on the side of a larger rather than smaller window of discourse.
Why? Because even though I have many different opinions on many different issues, I admit that I might be wrong about any given issue (including about what I’ve just discussed here). I might change my mind after being exposed to more arguments—and over the years, I have done so often.
In his celebrated 1944 speech, The Spirit of Liberty, Judge Learned Hand described the spirit of liberty as “the spirit which is not too sure that it is right.” Our discourse and democracy would be greatly improved if we all acted with less certainty that the other side is wrong and we are right.
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Of course, Title VII is simply one of many laws about hiring and firing. To my many readers involved in law firm hiring and management, please note that—according to Professor Eugene Volokh, based on his exhaustive analysis of the statutes—”[a]bout half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation.” So check applicable state law before, say, firing an employee because you heard they were canvassing on the weekends for Donald Trump.
I've said this before, but this seems to miss the point that the largest law firms only really care about transactional work and the people getting run out of the firms are mostly litigators who are explicitly doing advocacy work on behalf of non-corporate clients. That's just not work that a business firm needs to be doing and, frankly, I don't know why you would come to a firm that's mostly known for representing PE funds in order to do it. K&E isn't turning down bond offerings from American Outdoor (FKA Smith & Wesson) or the Olin Corporation (makers of Winchester ammunition). It's saying we're a law firm for large corporate clients because we're here to make money.
It's also simply not true that there aren't conservative partners at these firms, as you say these are people who work for giant corporations for a living. You can pull donation data by employer and if you type the top firms into Open Secrets you'll find plenty of donations to Trump and the NRSC and Ted Cruz and whoever else. The issue is getting the *firm's* name in the signature block of a bunch of briefs that are really policy advocacy pieces being funded by policy advocacy organizations and have absolutely nothing to do with business. It's perfectly reasonable to say as a matter of marketing that the firm doesn't do that kind of work in the same way that Cravath and Paul Weiss and others have an official policy against working for activist funds because they're in the business of working for incumbent boards.
This is a very good column.
I note that you have not defended your original thesis: that Big Law Firms should take on conservative pro bono projects in order to create some ideological diversity. I do not believe that thesis is defensible. (1) There are plenty of law firms (and deep pockets) that make certain that Right Wing priorities get thoroughly litigated; (2) There are well-endowed conservative NFPs that litigate Right Wing priorities; and (3) using scant pro bono resources to pursue goals that the majority of attorneys at a firm would find as going AGAINST the public good is an affirmatively bad thing.