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.
Actually, are you aware of K&E doing recent transactional work for gun companies (i.e., post-Clement's departure)?
Transactional work can pose "reputational risks" as well. See, e.g., how multiple Biglaw firms have turned down corporate work from Black Rifle Coffee Co., which some have called the "MAGA coffee brand."
Kirkland did work on Black Rifle's SPAC merger in 2021 (after several other firms passed). But I wonder if K&E would do so today.
Yeah but Black Rifle is like a micro cap company. I don't know about K&E in particular, but here's Cravath doing a spin out for a gun manufacturer last year:
The lists go on, if Bain wanted to buy a gun manufacturer I have a very, very hard time believing that K&E would be passing on that deal, but that's because Bain is a client with tens of millions of dollars in legal spend per year across half a dozen practice areas. The American Astroturf Society for Bringing Second Amendment Litigation isn't.
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.
I wouldn't call that my thesis; it was simply one of multiple recommendations I made for addressing the perceived problem. Today I would offer a more modest version of that thesis: if individual lawyers want to spend their pro bono time on certain conservative causes, they should be able to do that—i.e., the law firm shouldn't bar them from doing so, absent a client conflict. (At many firms, individual lawyers have broad leeway to pick up pro bono projects that are meaningful to them, so it's less a matter of a central authority allocating scarce resources and more a matter of individual lawyers getting approval.)
The other thing I learned in response to my op-ed is that the situation might not be as dire as I originally described. One person pointed out to me on Twitter that even though no Biglaw firm wanted to touch Dobbs, a bunch of them did file briefs supporting the religious schools in Carson v. Makin. When I learn new facts, I modify my opinions, and so that's why I am not stressing this point as much.
Do you think it's currently not the case that individual lawyers can spend pro bono time on conservative causes? My experience is that lawyers who wish to in fact do spend pro bono time on such causes. I don't have gun rights examples currently coming to mind, but I have definitely seen pro bono work for many conservative causes at my quite-left-leaning firm (including anti-abortion, anti-tax, pro-free exercise protection for religious bigotry, pro-protections for hate speech).
I imagine it is true that some lawyers who might in their heart of hearts defend such causes shy away from them because they do not want to appear as conservative as they are. But, assuming that is true, it shows that your current proposal--even if it were a change from the status quo--would be unlikely to move the needle on creating more airspace within Biglaw for ideological conservatism.
From your prior column, it was literally the first recommendation that you made:
"First, they should support politically diverse pro bono efforts. In the past, lawyers from large firms could be found representing both sides of contentious issues in their pro bono work, but today, there’s an overwhelming imbalance in favor of the left. As Clement noted in remarks last November, about two dozen Big Law firms filed amicus briefs in support of abortion rights in Dobbs — and zero filed on the other side. If managing partners give the green light to pro bono projects in defense of, say, religious liberty — and maybe even handle some of these projects personally, as lawyers — that would send a powerful message to rank-and-file lawyers about the firm’s commitment to viewpoint diversity."
I am glad that you have walked away from this untenable idea. I think that your new recommendation - that attorneys should be free to pursue pro bono projects that they want to, even if they are to the right of the firm's ethos - is great.
The underlying issue here seems to be one of perspective and of a lack of a uniform definition for terms like cancel culture. We each bring a different perspective to these issues imbued with our own inherent biases and lived experiences. It is hard to fully account for those things. It is also hard to account for a term like cancel culture when the term is so loaded and so politicized and lacks a uniform agreed upon definition.
Agreed, which is another problem I have with the term "cancel culture." As I wrote in an earlier post, I'd rather talk about the fairness or unfairness of specific incidents or situations, instead of slapping labels on things. I also fear that the term is unduly polarizing, and some folks just stop reading or listening once they come across those two words.
I roll my eyes at the phrase "cancel culture" because its overuse makes it devoid of meaning. The phrase seems to be applied in any instance where there's supposed outrage over something that happened.
"First, I think Biglaw is neither conservative nor liberal—rather, it is overwhelmingly libertarian. It's perfectly okay to be a Biglaw person who works for IJ or Cato. Nobody in Biglaw is going to be fired for saying that labor unions should have fewer rights or that taxes should be lower, nor is there any stigma in defending very well-heeled white-collar criminals. This is also obvious from looking at pro bono work—how many large firms are happy to sue the government on behalf of criminals? Big firms are happy to help convicted rapists and murderers avoid the death penalty. This is not even tied to LGBT/religion issues—as someone with conservative views on criminal justice, I simply assume that a number of partners, recruiters, or associates at any large firm are going to discriminate against me for having those views.
Second, an obvious reason for big firms to avoid taking partisan sides is because, once an institution is partisan, it is fair game. This is what's happened to public education, and what happened to Disney in Florida. Many people complain that a politician like Ron DeSantis is violating free-speech principles in going after what public schools can teach, but from the perspective of someone on the right, those principles are already toast. 'What if liberals had total control over the public education and university system?' Well, they already do, so there's no downside to fighting back. Obviously it would be a lot harder for someone like DeSantis to do this to AmLaw100 firms, but it's not impossible. Law is a heavily regulated industry. Maybe GOP-run states will conclude that some firms deserve antitrust scrutiny, or change pro hac vice rules so that it's harder to work across state lines. Maybe, as you say, states will pass legislation making it illegal to discriminate on the basis of political views. Once firms are openly taking sides, all of this is on the table."
And here's what I emailed that reader in response:
"On your first point, that's sort of what I was getting at with my point about AOC types going to Biglaw. I would be happy to see more non-libertarians—on both the right and the left—going to Biglaw firms.
On your second point, I'm reminded of how some senators started publicly scolding law firms that announced they would cover travel expenses for employees seeking abortion (e.g., Texas Republicans going after Sidley). So yes, I could definitely see conservative politicians trying to mess with law firms that do things they don't like."
The longer a person goes to school, college, post-graduate, etc., the longer they are exposed to liberal pressure from leftist academics (which most academicians are) and leftist peers. Of course lawyers tend to be leftist. What's odd is that anyone would refute the obvious. The ABA is overtly leftist, demanding leftist criteria from lawyers, as a whole. Anyone who argues that lawyers as a whole (in the U.S.) do not lean strongly to the left is someone whose critical thinking skills need examination.
Remember the King in The King and I: “There are times I am not sure of what I used to think I absolutely know. Very often find confusion in conclusions I concluded long ago. . . . “
1. I don’t think being opposed to legalized abortion—which I am not, for the record—is necessary anti-woman. There are many pro-life women who oppose abortion, especially when it is used for sex selection.
2. With Obergefell, as with Roe, the issue to me is less about what policy you favor and more about who should decide—the federal government, or the states? Voters, or judges? There are reasonable arguments on multiple sides.
3. If I ran a law firm, I wouldn’t force anyone to work on a case that they viewed as contrary to their civil rights. But I don’t know that they should have veto rights over work that colleagues do (absent client conflict), even if they see that work as “harming” them.
4. I’m glad to hear you think my examples are subjects for legitimate debate; there are many who would disagree with us. See, e.g., the thousands of people who signed that letter condemning the New York Times coverage of trans issues. I don’t think they see the athletics issue as a subject open to discussion.
I totally agree with you on the importance of doing your due diligence when it comes to the culture and values of your prospective employer. At one of my recent law school visits, a student expressed concern to me about going to Biglaw as a very pro-life person. She thinks she has found a firm to summer at where she will be fine, but it took her a while. There are many firms where had she gone to them and then complained of feeling unwelcome, I might have told her she could have known beforehand that they wouldn’t be great for someone with her views.
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.
Actually, are you aware of K&E doing recent transactional work for gun companies (i.e., post-Clement's departure)?
Transactional work can pose "reputational risks" as well. See, e.g., how multiple Biglaw firms have turned down corporate work from Black Rifle Coffee Co., which some have called the "MAGA coffee brand."
Kirkland did work on Black Rifle's SPAC merger in 2021 (after several other firms passed). But I wonder if K&E would do so today.
http://bit.ly/40YwJcR
Yeah but Black Rifle is like a micro cap company. I don't know about K&E in particular, but here's Cravath doing a spin out for a gun manufacturer last year:
https://www.cravath.com/news/vista-outdoors-planned-separation-of-its-outdoor-products-and-sporting-products-segments.html
Looks like American Outdoor uses Greenberg Traurig for their securities work: https://ir.aob.com/node/6406/html
Remington is currently in bankruptcy an O'Melveny is their counsel. I'm honestly surprised that's not K&E given that they do work for Cerberus (here's them doing a joint deal with them and noted wokesters Koch Industries https://www.kirkland.com/news/press-release/2021/03/kirkland-represents-cerberus-and-koch-on-pq)
The lists go on, if Bain wanted to buy a gun manufacturer I have a very, very hard time believing that K&E would be passing on that deal, but that's because Bain is a client with tens of millions of dollars in legal spend per year across half a dozen practice areas. The American Astroturf Society for Bringing Second Amendment Litigation isn't.
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.
I wouldn't call that my thesis; it was simply one of multiple recommendations I made for addressing the perceived problem. Today I would offer a more modest version of that thesis: if individual lawyers want to spend their pro bono time on certain conservative causes, they should be able to do that—i.e., the law firm shouldn't bar them from doing so, absent a client conflict. (At many firms, individual lawyers have broad leeway to pick up pro bono projects that are meaningful to them, so it's less a matter of a central authority allocating scarce resources and more a matter of individual lawyers getting approval.)
The other thing I learned in response to my op-ed is that the situation might not be as dire as I originally described. One person pointed out to me on Twitter that even though no Biglaw firm wanted to touch Dobbs, a bunch of them did file briefs supporting the religious schools in Carson v. Makin. When I learn new facts, I modify my opinions, and so that's why I am not stressing this point as much.
Do you think it's currently not the case that individual lawyers can spend pro bono time on conservative causes? My experience is that lawyers who wish to in fact do spend pro bono time on such causes. I don't have gun rights examples currently coming to mind, but I have definitely seen pro bono work for many conservative causes at my quite-left-leaning firm (including anti-abortion, anti-tax, pro-free exercise protection for religious bigotry, pro-protections for hate speech).
I imagine it is true that some lawyers who might in their heart of hearts defend such causes shy away from them because they do not want to appear as conservative as they are. But, assuming that is true, it shows that your current proposal--even if it were a change from the status quo--would be unlikely to move the needle on creating more airspace within Biglaw for ideological conservatism.
From your prior column, it was literally the first recommendation that you made:
"First, they should support politically diverse pro bono efforts. In the past, lawyers from large firms could be found representing both sides of contentious issues in their pro bono work, but today, there’s an overwhelming imbalance in favor of the left. As Clement noted in remarks last November, about two dozen Big Law firms filed amicus briefs in support of abortion rights in Dobbs — and zero filed on the other side. If managing partners give the green light to pro bono projects in defense of, say, religious liberty — and maybe even handle some of these projects personally, as lawyers — that would send a powerful message to rank-and-file lawyers about the firm’s commitment to viewpoint diversity."
I am glad that you have walked away from this untenable idea. I think that your new recommendation - that attorneys should be free to pursue pro bono projects that they want to, even if they are to the right of the firm's ethos - is great.
The underlying issue here seems to be one of perspective and of a lack of a uniform definition for terms like cancel culture. We each bring a different perspective to these issues imbued with our own inherent biases and lived experiences. It is hard to fully account for those things. It is also hard to account for a term like cancel culture when the term is so loaded and so politicized and lacks a uniform agreed upon definition.
Agreed, which is another problem I have with the term "cancel culture." As I wrote in an earlier post, I'd rather talk about the fairness or unfairness of specific incidents or situations, instead of slapping labels on things. I also fear that the term is unduly polarizing, and some folks just stop reading or listening once they come across those two words.
I roll my eyes at the phrase "cancel culture" because its overuse makes it devoid of meaning. The phrase seems to be applied in any instance where there's supposed outrage over something that happened.
Posting on behalf of a reader who emailed me:
"First, I think Biglaw is neither conservative nor liberal—rather, it is overwhelmingly libertarian. It's perfectly okay to be a Biglaw person who works for IJ or Cato. Nobody in Biglaw is going to be fired for saying that labor unions should have fewer rights or that taxes should be lower, nor is there any stigma in defending very well-heeled white-collar criminals. This is also obvious from looking at pro bono work—how many large firms are happy to sue the government on behalf of criminals? Big firms are happy to help convicted rapists and murderers avoid the death penalty. This is not even tied to LGBT/religion issues—as someone with conservative views on criminal justice, I simply assume that a number of partners, recruiters, or associates at any large firm are going to discriminate against me for having those views.
Second, an obvious reason for big firms to avoid taking partisan sides is because, once an institution is partisan, it is fair game. This is what's happened to public education, and what happened to Disney in Florida. Many people complain that a politician like Ron DeSantis is violating free-speech principles in going after what public schools can teach, but from the perspective of someone on the right, those principles are already toast. 'What if liberals had total control over the public education and university system?' Well, they already do, so there's no downside to fighting back. Obviously it would be a lot harder for someone like DeSantis to do this to AmLaw100 firms, but it's not impossible. Law is a heavily regulated industry. Maybe GOP-run states will conclude that some firms deserve antitrust scrutiny, or change pro hac vice rules so that it's harder to work across state lines. Maybe, as you say, states will pass legislation making it illegal to discriminate on the basis of political views. Once firms are openly taking sides, all of this is on the table."
And here's what I emailed that reader in response:
"On your first point, that's sort of what I was getting at with my point about AOC types going to Biglaw. I would be happy to see more non-libertarians—on both the right and the left—going to Biglaw firms.
On your second point, I'm reminded of how some senators started publicly scolding law firms that announced they would cover travel expenses for employees seeking abortion (e.g., Texas Republicans going after Sidley). So yes, I could definitely see conservative politicians trying to mess with law firms that do things they don't like."
The longer a person goes to school, college, post-graduate, etc., the longer they are exposed to liberal pressure from leftist academics (which most academicians are) and leftist peers. Of course lawyers tend to be leftist. What's odd is that anyone would refute the obvious. The ABA is overtly leftist, demanding leftist criteria from lawyers, as a whole. Anyone who argues that lawyers as a whole (in the U.S.) do not lean strongly to the left is someone whose critical thinking skills need examination.
Remember the King in The King and I: “There are times I am not sure of what I used to think I absolutely know. Very often find confusion in conclusions I concluded long ago. . . . “
A few thoughts:
1. I don’t think being opposed to legalized abortion—which I am not, for the record—is necessary anti-woman. There are many pro-life women who oppose abortion, especially when it is used for sex selection.
2. With Obergefell, as with Roe, the issue to me is less about what policy you favor and more about who should decide—the federal government, or the states? Voters, or judges? There are reasonable arguments on multiple sides.
3. If I ran a law firm, I wouldn’t force anyone to work on a case that they viewed as contrary to their civil rights. But I don’t know that they should have veto rights over work that colleagues do (absent client conflict), even if they see that work as “harming” them.
4. I’m glad to hear you think my examples are subjects for legitimate debate; there are many who would disagree with us. See, e.g., the thousands of people who signed that letter condemning the New York Times coverage of trans issues. I don’t think they see the athletics issue as a subject open to discussion.
I totally agree with you on the importance of doing your due diligence when it comes to the culture and values of your prospective employer. At one of my recent law school visits, a student expressed concern to me about going to Biglaw as a very pro-life person. She thinks she has found a firm to summer at where she will be fine, but it took her a while. There are many firms where had she gone to them and then complained of feeling unwelcome, I might have told her she could have known beforehand that they wouldn’t be great for someone with her views.