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Notice And Comment: Can A Conservative Work In Biglaw?
Are left-leaning law firms hostile to opposing viewpoints?
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The leftward leanings of the legal world are back in the news. In an interview yesterday with John Malcolm of the conservative Heritage Foundation, Justice Samuel Alito complained about the “abysmal” state of free speech in American law schools, which have become notorious for their intolerance of conservative views. (You can watch the original interview on the Heritage Foundation’s YouTube channel; Article III Groupie thanks Justice Alito for ditching the ill-advised beard.)
And it’s not just the legal academy. In my last Notice and Comment post, I posed this question: can a progressive work in Biglaw? In the ensuing discussion about whether holding progressive ideals is compatible with defending powerful corporations accused of doing not-so-progressive things, this comment jumped out at me:
I find this to be hilarious. In Biglaw, pro bono representation of Islamic terrorists is good, representing a Republican is bad. Suing a religious institution over its First Amendment protected abortion or traditional marriage views is good, representing anyone who supports the Second Amendment right to bear arms actually gets you kicked out of the firm. How delusional do you have to be to think you won't be welcome in Biglaw? Try being a mainstream conservative.
The commenter’s reference to getting “kicked out of the firm” for litigating on behalf of gun rights refers, of course, to Kirkland & Ellis forcing Paul Clement and Erin Murphy to choose between handling Second Amendment cases, including current representations, and remaining at K&E. They chose to leave—and when I interviewed him for my podcast, Clement expressed concern about Biglaw’s increasing hostility to conservative clients and causes:
I think that's a really problematic trend. I think it’s bad for the courts. I think it’s bad for the law. Big law firms can provide resources on pro bono issues. Big law firms have the resources to do certain kind of cases better than almost anybody else. And so if big law is only willing to do a subset of cases or only really be on one side of important legal issues, the whole system and the courts, frankly, are going to ultimately suffer as a result.
Paul Clement isn’t the only prominent lawyer with this worry. Rachel Brand, the chief legal officer of Walmart, remarked to me as follows:
Robust debate is great, but it’s deeply dismaying to see polarization in which people can’t work or be friends with people who hold different views. I’m worried that the legal profession is failing on this front. Take law firms rejecting pro bono projects on one side of the political spectrum—that wasn’t the case before. Representing unpopular clients is one of the great traditions of the legal profession.
And it’s not just their pro bono cases. The leftward lean of large law firms gets reflected in public messaging, such as statements from 70+ firms back in 2020 about racial injustice; internal communications, such as preferred pronoun policies; and employee benefits, such as covering travel costs for employees seeking abortions.
For purposes of this post, the issue is not whether racial injustice is bad—of course it is—or whether Dobbs was rightly decided. The issue is why Biglaw firms feel more comfortable—or even obligated—to advocate for liberal or progressive positions, and whether that has created workplace environments where conservatives feel uncomfortable or even prohibited from airing their views.
So, readers, what do you think? Does Biglaw lean too far left? For the conservatives among you, would you feel comfortable working in Biglaw? If you’re already at such a firm, do you feel you can share your views on hot-button issues? And for the progressives or liberals among you, is this just right-wing whining? Is it, as Lizzo might say, about damn time that Biglaw developed a social conscience?
Please share your views in the comments to this Notice and Comment (“N&C”) post. If you prefer, you can also email me; if you do, I will treat your comments as okay to post in the comments on your behalf, keeping you anonymous, unless you explicitly designate them as completely off the record and for my eyes only.
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