Posted on behalf of a reader who did not want to post under their own name (for reasons that will become clear when you read the comment—this might be an unpopular position. This reader also asked me to mention that they’re not a lawyer.
Start of comment:
I am starting to find it both very disappointing and, frankly, a little alarming how quicky hating all things Russian is coming into vogue. Stopping performing works of long-dead Russian composers, for example, or stopping eating at Russian-themed restaurants. It feels, from the sidelines, that increasingly merely being Russian is a crime, and how quickly we are falling into that place, all of us. Left and Right, British and American, German, and others. Despite all our fine words and aspirations, we are not so enlightened. Should actual war with Russia ever happen, can we be sure some sort of internal internment wouldn't happen? Six weeks ago, I would have said absolutely not. But now, now I am not so sure. In the US context, Korematsu casts a long shadow, and over here we had our own deportations, or things like the anti-Italian riots that occurred in London and elsewhere in the UK following Italy's entry in the Second World War.
I should say as well that I very much support Ukraine's right for statehood and independence, deeply deplore this invasion, and think we in the West should offer Ukraine absolutely every support we can that does not cause us to ourselves initiate hostilities with Russia. We should not be (and are not, it seems) neutral in this. Mind you, I have been thinking this since the 2008 invasion of Georgia, so I generally kept quiet about it because I hated being called a warmonger, etc.
So with that context:
(a) one should distinguish between the Russian state on one hand, and Russian individuals and corporations on the other. And still further differentiate between certain individuals and corporations (e.g., Putin-supporting oligarchs) and other individuals and corporations.
It should not be needed to be said, but if a Russian (or Belorussian) individual or company has vocally opposed the invasion, and taken solid steps to demonstrate that, they should be treated differently from a corporation tightly tied to a Putin supporter that has made comments supporting the invasion. By way of example of the former: Wargaming. A computer games company headquartered in Minsk though with games with a very large non-Russian playerbase, but which has publicly condemned the invasion, sacked one of its founding members over his support of the war, and pledged a large donation to Ukraine.
(b) one should distinguish between where the legal services are being offered.
In my mind there is a difference between something taking place in Russia, and something taking place over here. This may be a layperson's distinction. On a practical note though, given everything, I think most legal companies could be construed to have a duty of care to their staff to not keep them in Russia at this time.
(c) one should distinguish between different legal services, and different legal situations.
It is one of the supposed hallmarks of American legal culture: the right to representation. It even exists over here, though in a somewhat more attenuated form from what I understand given the state of our legal aid. Another such hallmark is that the State itself is bound by laws, and that people and organisations are allowed to dispute those laws - in the US case to argue they are even unconstitutional. Russian individuals and entities should absolutely still have those rights, even those linked to Putin. And should be able to be professionally represented. And, and this is crucial, those legal firms and individual lawyers should not be pressured not to do so.
One of the foundational events of the American legal mythos, to me, is John Adams defending the British soldiers caught up in the Boston massacre. And it was no token defence, from what I understand. Once he was persuaded to accept the task, John Adams was committed in their defence, despite the opprobrium of the times. John Adams, of course, was no ordinary person - but the point is that one should not have to risk opprobrium and censure when fulfilling as fundamental a role as providing legal representation to a person or entity against the State.
A second foundational example of this - given all the talk of Nazis and the like - is Nuremberg. Now I do not generally buy into the myth of Nuremberg - I think in reality Nuremberg had more than a little of the whiff of a show trial about it (and how could it not, given the Soviet presence and activity?) - but Nuremberg at least pointed the way to a different way of doing things. And for all its faults, at Nuremberg on the trials of some of the people who have fallen furthest from our common humanity, the defenders had the right to legal representation. In the modern trials from the break-up of Yugoslavia some truly heinous individuals were given basically every consideration - including automatic appeals. The lawyers on the defence were assiduous in their task.
Now criminal defence, or defending against the actions of the state, is one thing. But what about other legal matters. Well, if another company or individual begins a civil dispute with a Russian company, again it seems to be that the Russian company deserves to be able to be professionally represented, and that representation should be able to take place without fear. Some argue that sometimes the poorest cannot access adequate representation. That is sadly true in both our countries, but I struggle with the logic that because sometimes (even frequently) everything is not as it should be we should make it worse. The negativity repels me. If representation is important - and I believe it is - then the fact that a Russian company can afford it but someone else cannot is indeed an indictment of our own system, but then it is on us to change the system that leads to that outcome, not to prevent the Russian company from having representation.
At the risk of sounding too law-schooly, I then wonder about another scenario. Say a Russian company has a US patent. In the current mess, a US company or individual decides to try and ignore that patent. Should the Russian company be prevented from defending its IP in that situation through lack of legal representation? If the company has made definitive statements and actions opposing the invasion, then I would say absolutely not. But what about if the situation is otherwise? This one I think is tricky. One could argue that the patent might be seized or suspended as part of some sanction, and if so there would presumably be a legal process for that. However, I think we might be starting to walk down a very dangerous road if we were to say such a patent could be ignored by extra-legal means through the intimidation of legal representation.
(d) legal requirements.
We are obviously in a fast-moving situation. You already intimated that maybe some services have been withdrawn as a legal obligation due to sanctions. Obviously law firms have to obey the law. In that though I hope we can distinguish between what acts the law actually requires, versus using a law as a convenient excuse.
So in summary I am broadly in favour of continuing to represent Russian companies and individuals in a variety of scenarios. There may be some very practical reasons, which I both understand and endorse, why Western companies would withdraw services and staff directly from Russia right now. But when it comes to legal representation more widely, in quite a few contexts I believe "Russia" should still be represented, and I would generally think a more expansive view of that as well. As to why - when Putin would never accord us that same courtesy, when Putin is responding for the deaths of thousands and the deprivation of millions (and more likely tens of millions, if not hundreds, before this is over)? Because we are not Putin.
In Russia itself it is going to be hell. Sanctions, it seems to me, however necessary I think they are, are a shockingly blunt and indiscriminate tool - and we should not pretend otherwise. Like the bombing of Germany and Japan in WW2, however justified (and on the whole I believe they were), the fact remains the people who will suffer most will be ordinary Russians. If we had done better in 2014, or 2008, or 1998, or at any number of other points, things might be different. But past is past, But this is a topic that extends out of Russia.
To let Putin change who we are in our own realms and domains is to give him a power he does not deserve. We should glory in the fact that in our socities even our foes get to have their day in court, and even sometimes have amongst the best in the legal profession arguing their side. They may not win - but if and when their assets are seized or their businesses unravelled or the patents plundered, it will not be a capricious and arbitrary act of state power, but the application of a state power even then constrained by the rule of law.
I admit to being, at times perhaps, a hopeless idealist. But I would submit idealism is no bad thing. To adapt something from the late great Sir Terry Pratchett, if we cannot imagine a better world, how else can it become?
Posting two more comments from readers who emailed me:
1. "Everyone is entitled to the legal counsel they’ve hired to represent them and are not accountable for their government’s actions. I’m glad most firms have kept their ethics and their Russian clients. If the situation were reversed and our government did something another country didn’t agree with, I would be glad if the citizens of that country saw me as an individual, rather than a member of a tribal group."
2. "Any Russians who got the boot can come to me."
I hate it when lawyers are attacked for representing certain clients, whether it’s Ketanji Brown Jackson for Guantanamo detainees or Paul Clement for congressmen defending DOMA. But in this case, there are larger, systemic concerns at work—externalities, if you want to think of them that way—that support dumping Russian clients and closing Moscow offices.
Get the hell out of Russia. I can’t imagine that it’s a very profitable market anyway, and it’s probably rife with corruption that puts lawyers and law firms in bad or at least difficult positions.
It’s the #1 country by land area and the #9 country by population, but only #11 by GDP. Canada and South Korea have larger economies, and Brazil and Australia are not far behind Russia (and might overtake it this year, given how Russia’s economy is projected to shrink because of sanctions and other fallout from the invasion).
The decision to close any office is a business decision. If an office is closed, clients and personnel must be transitioned legally and ethically. It’s fairly straightforward to close a Moscow office. The more interesting question is the treatment of Russian clients in Western nations.
Scenario #1: Chauncey is a wealthy U.S. investor with a passion for Beluga Noble Russian vodka, which he pours over ice and sips all day as he watches the stock ticker. Outraged by Putin’s invasion of Ukraine, he resolves that a sacrifice is in order and he switches brands to Tito’s, a fine Texas-made vodka.
Scenario #2: A large man named Igor staggers into an emergency room in an American city while grasping his chest.. The emergency room doctor runs to his aid and commences treatment. The medical assistant intervenes and says “I recognize this guy. He’s a Russian Oligarch. A buddy of Putin. If you treat him, our hospital staff will revolt and move to other hospitals. Plus, we won’t be able to recruit their replacements.” The physician doesn’t miss a beat, treats the man and saves his life.
Scenarios #3: Igor miraculously soon recovers and barges into the office of a Big Law managing partner. He says “right out of nowhere the government is seizing my real estate, my yacht and various baubles of great value. And, they won’t allow me access to funds in my accounts. Are you people savages in this country? Does the rule of law mean nothing to you? I need your top litigators to rush into court and enjoin this activity. I will pay your fee in full and supply you with a large retainer. Your associate tells me you have no conflicts.” The associate whispers into the managing partner’s ear: “This guy is a Russian Oligarch. One of Putin’s buddies. If we accept him as a client, our lawyers and staff will revolt. Harvard Law students may not care but Yale Law students will hate us more than they hate each other.”
Are lawyers more like emergency room doctors or vodka lovers?
Thank you for this insightful (and fun-to-read) framing, Peter. As for the answer to your question, it might depend on the type of lawyer and legal work at issue. How much is the situation like a medical emergency? One could argue that representing an oligarch or his company in an M&A deal that is just going to make him even richer is not much of an emergency (and this type of transactional work is probably the kind of thing that most Biglaw firms in Russia are involved with).
I think this is the wrong issue, discussed in the wrong way.
First, I refer to John Mearsheimer's analysis (several videos on YouTube, if you're interested), that the West (the US in particular, but apparently with the support or encouragement of our European allies) have pushed Russia into a corner where they perceive that armed action is necessary.
Since the fall of the Berlin wall and the collapse of the Soviet Union, we have been working to bring all of Europe (and as much as possible of the rest of the world) into the Western world of liberal democracy, respect for individual rights, market economies, the rule of law, and robust international institutions. These objectives may be admirable - I certainly am glad that I live in a liberal democracy, and I'd like it if everyone else could as well.
However, countries that are not liberal democracies are governed by people who are not liberal democrats, and are not willing to cede power. These leaders see our promotion of liberal democracy as attempts to overthrow their governments. They will resist our efforts.
In addition, they don't ever expect to see a world where all nations live peaceably, focusing on economic development and ignoring issues such as military threats. Therefore, they will protect their national interests the old-fashioned way: by military deterrence and, if necessary, military force.
Putin has made it clear, consistently, for at least the last 14 years, that he considers Ukraine a vital Russian interest, and that he will not tolerate a Ukraine that becomes part of The West, whether formally part of NATO or not. He attacked Georgia in 2008 when NATO membership for Georgia and Ukraine was proposed. He took control of Crimea in 2014 after a coup toppled the Russian-leaning Ukrainian government of Viktor Yanukovych. There's pretty clear evidence that this coup was encouraged, if not instigated, by the US and its allies, but even if it weren't, the effect would be the same: a Ukraine seeking to align with the West, and therefore against Russia.
Last year, we again moved to increase ties between Ukraine and the West, and Russia refused to tolerate this. The Russian invasion was predictable, even inevitable, based on this. I don't think that Putin wants to annex Ukraine - the Soviet Union had very great difficulty dominating eastern Europe during the cold war, and has neither the appetite nor the means to control Ukraine through military force and repression. However, Putin is quite willing to inflict widespread destruction on Ukraine in order to make a point - that Ukraine is in the Russian sphere of influence, and will not leave.
Putin's raising the alert status of Russian nuclear forces is a clear signal that he won't back down; he clearly values Ukraine much more than any Western country does. We seem to have led the Ukrainians to think that we would support them in their move to join the West. We continue to support this belief by sending military aid, including arranging for more aircraft transferred from Poland, and Stinger rockets transferred from Germany and the Netherlands. In doing this, we are prolonging the conflict and increasing the suffering of the Ukrainian people (as well as the Russians). The end state is inevitable: some agreement where the Ukrainians are committed to never joining NATO or the EU, and where any military ties are with Russia and Russia-aligned countries.
On the subject of the law firms: I doubt very much that western law firms can have much influence in developing a robust legal culture in Russia. If any law firm doesn't want to operate in Russia, given the nature of its regime, they are of course free to leave. But we shouldn't be under any delusions that the decision either way will have much influence on Russia - either on the invasion of Ukraine, or on the subsequent nature of the Russian state.
If all this sounds immoral, my answer is that liberal morality is irrelevant to international relations, except (possibly) between liberal democracies that share values, or perhaps in the case of a strong liberal power that can intervene in a weak country to stop or prevent some massive violation of basic rights, such as the Rwanda massacre. Even in these cases, though, we should be modest in our expectations - we were able to facilitate the downfall of Qaddafi, who was a very bad ruler indeed, but we haven't been able to nurture a functional society in his wake.
To play devil’s advocate… if your view is that international relations is really just about power and national self-interest at the end of the day, why shouldn’t the U.S. use all the power at our disposal to crush Russia? Isn’t the invasion of Ukraine a great opportunity for us to use our economic and diplomatic pressure to isolate Russia and to destabilize the Putin regime? And isn’t getting Putin out in our own national interest (again, taking your view that international relations is really about power and nations advancing their own interests, as opposed to any sort of moral principles)? We can talk about morality and international law, but perhaps they are just convenient justifications for actions that are in our own interest as a superpower? (Again, to be clear, I’m playing devil’s advocate and trying to take your comment on its own terms.)
I don't say that international relations is "just" about power and national self-interest.
I certainly don't think we should strong-arm Canada or Mexico, just because we can.
I don't think we should invade Bermuda, even if it is helping thwart our tax laws and has beaches that would enhance American tourism. We can afford to be moral with countries that don't threaten us, and currently very few countries threaten us.
Why shouldn't we crush Russia?
1. No matter what we do, Russia will not disappear. If the Putin regime collapses, some other regime will replace it. The new regime is not likely to be nicer than Putin's, but it could be worse. Either it, or the Putin regime, could use their very significant nuclear arsenal to try to prevent collapse. Even without an apocalypse, we should have some modesty about our ability to shape Russia after the crushing. We had great confidence that we could create something better in Afghanistan, Iraq, and Libya, but I don't think it's clear that we succeeded.
2. Alternatively, the collapse of the Putin regime could lead to the dissolution of the Russian state. This could lead to instability spreading to neighboring countries. Some of the fragments may be host to criminal or terrorist groups much worse than anything currently in Russia.
3. It would take a great deal of effort by us and our allies to significantly weaken Russia. Aside from the above, this is a questionable use of limited American resources, and it's not clear our allies would support us in this effort, although they seem to be at least as anti-Russian as we are, for now.
4. A weaker Russia isn't necessarily in our interest. The clearly rising power in the world is China, which is also not a liberal democracy, and doesn't play by liberal rules. China is really more of a threat to Russia and its interests than it is to us and ours, so we could use a friendly Russia to help contain China. We are currently doing a lot to ensure that Russia is never friendly, but we could reverse these policies.
You, like most western commentators I've seen, seem to make an assumption that Russia is the way it is because Putin, a bad person, is leading it. I think it's closer to the truth to say that Putin is in charge because he sees what needs to be done to preserve the stability, power, and influence of the Russian state, and is willing to do it. His replacement might be weaker, but probably wouldn't be better in a moral sense, or in terms of our interests.
Thanks for this thoughtful response; you make some very good points. I acknowledge the risk of the unknown.
I don’t purport to be an expert in Russian history, but Putin does seem to be the worst leader of Russia in a long time, and I don’t know that it would get worse without him. I think we—and the Russian people, and the general region—might be better off with a Medvedev or Yeltsin or Gorbachev, to name some actual past leaders of Russia/the U.S.S.R. Do you disagree?
I'm not sure what you mean by "worst". I don't think Putin has imprisoned nearly as many people as the Soviet regime did, and he certainly isn't controlling other countries to nearly the extent the Soviet regime did. He's fighting us more than his predecessors, in large part because we've acted on the assumption, for the last 30 years, that we could do what we want and Russia couldn't do anything about it. Putin has decided he needs to do something about it, and that he can.
Gorbachev was a sclerotic apparatchik leading other sclerotic apparatchiks. He was better for US interests than Stalin was, in part because he and his regime were sclerotic, unwilling to take risks. But I expect he would have looked a lot different if we had tried to induce a revolt in Ukraine to get it to leave the Soviet Union.
Yeltsin might look better to us - he at least went through the motions of trying to lead Russia into a liberal, capitalist future. But he failed, Russians ended up reviling him, and he was forced out by Putin because of it.
Gorbachev seemed like an idealist, but he was also put in power by the Soviet apparatus. He thought he needed to modernize and reform the economy in order to prevent collapse; in the end his reforms led to collapse. Whether that's "better" is a matter of judgment, but most Russian people don't think he did well. And I don't think a new Gorbachev would have any hope of getting power.
We need to keep some modesty about what is achievable. As I said initially, I'd be delighted if everyone could live in a liberal democracy. That doesn't mean our policy should try to remake other countries into liberal democracies.
Withdrawing might be more symbolic than anything else. That doesn’t mean law firms shouldn’t do it, but don’t kid yourselves about whether this will make a difference in the real world. Putin is a thug who will do what he wants to do, and he doesn’t care whether Cleary still has a Moscow office.
I agree with the first anonymous comment Lat posted. I object strongly to Russia's invasion of Ukraine. I support measures aimed at stopping that and/or punishing those responsible. I support the sports competitions and associations that have banned Russian teams--on the theory that those teams represent Russia, and that the Putin regime uses athletes for propaganda. I also support sanctions. They're a blunt instrument and they'll unfortunately visit the most harm on 150 million innocent Russians who aren't really responsible for the invasion--but they're probably preferable to direct military intervention and are perhaps the best way to communicate with a population that's being deprived of information right now.
What I don't support is the trend of hating all things Russian, or antagonizing individual Russians who've left Russia. Russian-themed restaurants in NYC, Russian-citizen artists performing abroad, individual Russian immigrants you know, books and music by Russian authors and composers--it makes no sense to go after any of this. I thought there was a broad consensus in 2022 that the Japanese internment camps were bad, and that the "freedom fries" trend from about 20 years ago was pointless.
With that, I think anyone who says that multinational law firms should out of Russia should explain why. If sanctions require withdrawal, so be it. If the crash of the ruble means it's bad business decision to stay, so be it as well. But what I don't get is the argument that law firms have a moral responsibility to pull out. What harm is done by providing legal services in Russia? What purpose is served by withdrawing them?
I think the spirit of Rule 8.4 of professional conduct might come into play here. It is one thing to help clients who have committed a crime. It is something quite different to be participants in a crime.
Now the work that is being done in Russia may not fit into “participants of a crime” prohibition. But it may also be more than just advising people who have done something wrong.
Prof. Burke-White might be making a distinction without a difference: my impression, based on practice in this space, is that the largest Russian “corporate” entities (particularly in the banking and oil & gas spaces) are either directly or indirectly (i.e., controlled by oligarchs with coerced loyalty to Putin & his henchmen) state owned. Russia-based Biglaw regularly represents these types of clients (Latham & Watkins is not exactly representing Boris and Natasha’s Blini Shop). Unfortunately, these firms don’t seem to want to let go of lucrative and reliable business and are using our profession’s commitment to unpopular representation as a shield against well-earned criticism.
Thank you for the article. All companies should get out of Russia, including law firms. There is no justification for what Russia has done to Ukraine - unkept ceasefires, shelled hospitals, dead children. Businesses operating in Russia pay taxes on profits, thereby funding Russian belligerence. American companies should have no part in it. Congress should make it illegal to conduct business in Russia (like Cuba, Iran, North Korea, Syria). Thankfully, there are law firms such as Akin Gump, Cleary, Latham, Morgan Lewis, Norton Rose, and Squire who are voluntarily ceasing operations in Russia. The rest should follow.
Posted on behalf of a reader who did not want to post under their own name (for reasons that will become clear when you read the comment—this might be an unpopular position. This reader also asked me to mention that they’re not a lawyer.
Start of comment:
I am starting to find it both very disappointing and, frankly, a little alarming how quicky hating all things Russian is coming into vogue. Stopping performing works of long-dead Russian composers, for example, or stopping eating at Russian-themed restaurants. It feels, from the sidelines, that increasingly merely being Russian is a crime, and how quickly we are falling into that place, all of us. Left and Right, British and American, German, and others. Despite all our fine words and aspirations, we are not so enlightened. Should actual war with Russia ever happen, can we be sure some sort of internal internment wouldn't happen? Six weeks ago, I would have said absolutely not. But now, now I am not so sure. In the US context, Korematsu casts a long shadow, and over here we had our own deportations, or things like the anti-Italian riots that occurred in London and elsewhere in the UK following Italy's entry in the Second World War.
I should say as well that I very much support Ukraine's right for statehood and independence, deeply deplore this invasion, and think we in the West should offer Ukraine absolutely every support we can that does not cause us to ourselves initiate hostilities with Russia. We should not be (and are not, it seems) neutral in this. Mind you, I have been thinking this since the 2008 invasion of Georgia, so I generally kept quiet about it because I hated being called a warmonger, etc.
So with that context:
(a) one should distinguish between the Russian state on one hand, and Russian individuals and corporations on the other. And still further differentiate between certain individuals and corporations (e.g., Putin-supporting oligarchs) and other individuals and corporations.
It should not be needed to be said, but if a Russian (or Belorussian) individual or company has vocally opposed the invasion, and taken solid steps to demonstrate that, they should be treated differently from a corporation tightly tied to a Putin supporter that has made comments supporting the invasion. By way of example of the former: Wargaming. A computer games company headquartered in Minsk though with games with a very large non-Russian playerbase, but which has publicly condemned the invasion, sacked one of its founding members over his support of the war, and pledged a large donation to Ukraine.
(b) one should distinguish between where the legal services are being offered.
In my mind there is a difference between something taking place in Russia, and something taking place over here. This may be a layperson's distinction. On a practical note though, given everything, I think most legal companies could be construed to have a duty of care to their staff to not keep them in Russia at this time.
(c) one should distinguish between different legal services, and different legal situations.
It is one of the supposed hallmarks of American legal culture: the right to representation. It even exists over here, though in a somewhat more attenuated form from what I understand given the state of our legal aid. Another such hallmark is that the State itself is bound by laws, and that people and organisations are allowed to dispute those laws - in the US case to argue they are even unconstitutional. Russian individuals and entities should absolutely still have those rights, even those linked to Putin. And should be able to be professionally represented. And, and this is crucial, those legal firms and individual lawyers should not be pressured not to do so.
One of the foundational events of the American legal mythos, to me, is John Adams defending the British soldiers caught up in the Boston massacre. And it was no token defence, from what I understand. Once he was persuaded to accept the task, John Adams was committed in their defence, despite the opprobrium of the times. John Adams, of course, was no ordinary person - but the point is that one should not have to risk opprobrium and censure when fulfilling as fundamental a role as providing legal representation to a person or entity against the State.
A second foundational example of this - given all the talk of Nazis and the like - is Nuremberg. Now I do not generally buy into the myth of Nuremberg - I think in reality Nuremberg had more than a little of the whiff of a show trial about it (and how could it not, given the Soviet presence and activity?) - but Nuremberg at least pointed the way to a different way of doing things. And for all its faults, at Nuremberg on the trials of some of the people who have fallen furthest from our common humanity, the defenders had the right to legal representation. In the modern trials from the break-up of Yugoslavia some truly heinous individuals were given basically every consideration - including automatic appeals. The lawyers on the defence were assiduous in their task.
Now criminal defence, or defending against the actions of the state, is one thing. But what about other legal matters. Well, if another company or individual begins a civil dispute with a Russian company, again it seems to be that the Russian company deserves to be able to be professionally represented, and that representation should be able to take place without fear. Some argue that sometimes the poorest cannot access adequate representation. That is sadly true in both our countries, but I struggle with the logic that because sometimes (even frequently) everything is not as it should be we should make it worse. The negativity repels me. If representation is important - and I believe it is - then the fact that a Russian company can afford it but someone else cannot is indeed an indictment of our own system, but then it is on us to change the system that leads to that outcome, not to prevent the Russian company from having representation.
At the risk of sounding too law-schooly, I then wonder about another scenario. Say a Russian company has a US patent. In the current mess, a US company or individual decides to try and ignore that patent. Should the Russian company be prevented from defending its IP in that situation through lack of legal representation? If the company has made definitive statements and actions opposing the invasion, then I would say absolutely not. But what about if the situation is otherwise? This one I think is tricky. One could argue that the patent might be seized or suspended as part of some sanction, and if so there would presumably be a legal process for that. However, I think we might be starting to walk down a very dangerous road if we were to say such a patent could be ignored by extra-legal means through the intimidation of legal representation.
(d) legal requirements.
We are obviously in a fast-moving situation. You already intimated that maybe some services have been withdrawn as a legal obligation due to sanctions. Obviously law firms have to obey the law. In that though I hope we can distinguish between what acts the law actually requires, versus using a law as a convenient excuse.
So in summary I am broadly in favour of continuing to represent Russian companies and individuals in a variety of scenarios. There may be some very practical reasons, which I both understand and endorse, why Western companies would withdraw services and staff directly from Russia right now. But when it comes to legal representation more widely, in quite a few contexts I believe "Russia" should still be represented, and I would generally think a more expansive view of that as well. As to why - when Putin would never accord us that same courtesy, when Putin is responding for the deaths of thousands and the deprivation of millions (and more likely tens of millions, if not hundreds, before this is over)? Because we are not Putin.
In Russia itself it is going to be hell. Sanctions, it seems to me, however necessary I think they are, are a shockingly blunt and indiscriminate tool - and we should not pretend otherwise. Like the bombing of Germany and Japan in WW2, however justified (and on the whole I believe they were), the fact remains the people who will suffer most will be ordinary Russians. If we had done better in 2014, or 2008, or 1998, or at any number of other points, things might be different. But past is past, But this is a topic that extends out of Russia.
To let Putin change who we are in our own realms and domains is to give him a power he does not deserve. We should glory in the fact that in our socities even our foes get to have their day in court, and even sometimes have amongst the best in the legal profession arguing their side. They may not win - but if and when their assets are seized or their businesses unravelled or the patents plundered, it will not be a capricious and arbitrary act of state power, but the application of a state power even then constrained by the rule of law.
I admit to being, at times perhaps, a hopeless idealist. But I would submit idealism is no bad thing. To adapt something from the late great Sir Terry Pratchett, if we cannot imagine a better world, how else can it become?
Posting two more comments from readers who emailed me:
1. "Everyone is entitled to the legal counsel they’ve hired to represent them and are not accountable for their government’s actions. I’m glad most firms have kept their ethics and their Russian clients. If the situation were reversed and our government did something another country didn’t agree with, I would be glad if the citizens of that country saw me as an individual, rather than a member of a tribal group."
2. "Any Russians who got the boot can come to me."
You don't see Biglaw offices in Tehran. I don't see a principled difference between Tehran and Moscow right now.
^^^What he said!
I hate it when lawyers are attacked for representing certain clients, whether it’s Ketanji Brown Jackson for Guantanamo detainees or Paul Clement for congressmen defending DOMA. But in this case, there are larger, systemic concerns at work—externalities, if you want to think of them that way—that support dumping Russian clients and closing Moscow offices.
Get the hell out of Russia. I can’t imagine that it’s a very profitable market anyway, and it’s probably rife with corruption that puts lawyers and law firms in bad or at least difficult positions.
It’s the #1 country by land area and the #9 country by population, but only #11 by GDP. Canada and South Korea have larger economies, and Brazil and Australia are not far behind Russia (and might overtake it this year, given how Russia’s economy is projected to shrink because of sanctions and other fallout from the invasion).
The decision to close any office is a business decision. If an office is closed, clients and personnel must be transitioned legally and ethically. It’s fairly straightforward to close a Moscow office. The more interesting question is the treatment of Russian clients in Western nations.
Scenario #1: Chauncey is a wealthy U.S. investor with a passion for Beluga Noble Russian vodka, which he pours over ice and sips all day as he watches the stock ticker. Outraged by Putin’s invasion of Ukraine, he resolves that a sacrifice is in order and he switches brands to Tito’s, a fine Texas-made vodka.
Scenario #2: A large man named Igor staggers into an emergency room in an American city while grasping his chest.. The emergency room doctor runs to his aid and commences treatment. The medical assistant intervenes and says “I recognize this guy. He’s a Russian Oligarch. A buddy of Putin. If you treat him, our hospital staff will revolt and move to other hospitals. Plus, we won’t be able to recruit their replacements.” The physician doesn’t miss a beat, treats the man and saves his life.
Scenarios #3: Igor miraculously soon recovers and barges into the office of a Big Law managing partner. He says “right out of nowhere the government is seizing my real estate, my yacht and various baubles of great value. And, they won’t allow me access to funds in my accounts. Are you people savages in this country? Does the rule of law mean nothing to you? I need your top litigators to rush into court and enjoin this activity. I will pay your fee in full and supply you with a large retainer. Your associate tells me you have no conflicts.” The associate whispers into the managing partner’s ear: “This guy is a Russian Oligarch. One of Putin’s buddies. If we accept him as a client, our lawyers and staff will revolt. Harvard Law students may not care but Yale Law students will hate us more than they hate each other.”
Are lawyers more like emergency room doctors or vodka lovers?
Thank you for this insightful (and fun-to-read) framing, Peter. As for the answer to your question, it might depend on the type of lawyer and legal work at issue. How much is the situation like a medical emergency? One could argue that representing an oligarch or his company in an M&A deal that is just going to make him even richer is not much of an emergency (and this type of transactional work is probably the kind of thing that most Biglaw firms in Russia are involved with).
criminal defense lawyers absolutely should not be judged in any way by their clients.
but mega firms who want to continue advising russia companies on transactions or complying with new russian edicts?
ok thats your choice, and i hope inhouse counsel at your other clients drop you for it.
I think this is the wrong issue, discussed in the wrong way.
First, I refer to John Mearsheimer's analysis (several videos on YouTube, if you're interested), that the West (the US in particular, but apparently with the support or encouragement of our European allies) have pushed Russia into a corner where they perceive that armed action is necessary.
Since the fall of the Berlin wall and the collapse of the Soviet Union, we have been working to bring all of Europe (and as much as possible of the rest of the world) into the Western world of liberal democracy, respect for individual rights, market economies, the rule of law, and robust international institutions. These objectives may be admirable - I certainly am glad that I live in a liberal democracy, and I'd like it if everyone else could as well.
However, countries that are not liberal democracies are governed by people who are not liberal democrats, and are not willing to cede power. These leaders see our promotion of liberal democracy as attempts to overthrow their governments. They will resist our efforts.
In addition, they don't ever expect to see a world where all nations live peaceably, focusing on economic development and ignoring issues such as military threats. Therefore, they will protect their national interests the old-fashioned way: by military deterrence and, if necessary, military force.
Putin has made it clear, consistently, for at least the last 14 years, that he considers Ukraine a vital Russian interest, and that he will not tolerate a Ukraine that becomes part of The West, whether formally part of NATO or not. He attacked Georgia in 2008 when NATO membership for Georgia and Ukraine was proposed. He took control of Crimea in 2014 after a coup toppled the Russian-leaning Ukrainian government of Viktor Yanukovych. There's pretty clear evidence that this coup was encouraged, if not instigated, by the US and its allies, but even if it weren't, the effect would be the same: a Ukraine seeking to align with the West, and therefore against Russia.
Last year, we again moved to increase ties between Ukraine and the West, and Russia refused to tolerate this. The Russian invasion was predictable, even inevitable, based on this. I don't think that Putin wants to annex Ukraine - the Soviet Union had very great difficulty dominating eastern Europe during the cold war, and has neither the appetite nor the means to control Ukraine through military force and repression. However, Putin is quite willing to inflict widespread destruction on Ukraine in order to make a point - that Ukraine is in the Russian sphere of influence, and will not leave.
Putin's raising the alert status of Russian nuclear forces is a clear signal that he won't back down; he clearly values Ukraine much more than any Western country does. We seem to have led the Ukrainians to think that we would support them in their move to join the West. We continue to support this belief by sending military aid, including arranging for more aircraft transferred from Poland, and Stinger rockets transferred from Germany and the Netherlands. In doing this, we are prolonging the conflict and increasing the suffering of the Ukrainian people (as well as the Russians). The end state is inevitable: some agreement where the Ukrainians are committed to never joining NATO or the EU, and where any military ties are with Russia and Russia-aligned countries.
On the subject of the law firms: I doubt very much that western law firms can have much influence in developing a robust legal culture in Russia. If any law firm doesn't want to operate in Russia, given the nature of its regime, they are of course free to leave. But we shouldn't be under any delusions that the decision either way will have much influence on Russia - either on the invasion of Ukraine, or on the subsequent nature of the Russian state.
If all this sounds immoral, my answer is that liberal morality is irrelevant to international relations, except (possibly) between liberal democracies that share values, or perhaps in the case of a strong liberal power that can intervene in a weak country to stop or prevent some massive violation of basic rights, such as the Rwanda massacre. Even in these cases, though, we should be modest in our expectations - we were able to facilitate the downfall of Qaddafi, who was a very bad ruler indeed, but we haven't been able to nurture a functional society in his wake.
To play devil’s advocate… if your view is that international relations is really just about power and national self-interest at the end of the day, why shouldn’t the U.S. use all the power at our disposal to crush Russia? Isn’t the invasion of Ukraine a great opportunity for us to use our economic and diplomatic pressure to isolate Russia and to destabilize the Putin regime? And isn’t getting Putin out in our own national interest (again, taking your view that international relations is really about power and nations advancing their own interests, as opposed to any sort of moral principles)? We can talk about morality and international law, but perhaps they are just convenient justifications for actions that are in our own interest as a superpower? (Again, to be clear, I’m playing devil’s advocate and trying to take your comment on its own terms.)
I don't say that international relations is "just" about power and national self-interest.
I certainly don't think we should strong-arm Canada or Mexico, just because we can.
I don't think we should invade Bermuda, even if it is helping thwart our tax laws and has beaches that would enhance American tourism. We can afford to be moral with countries that don't threaten us, and currently very few countries threaten us.
Why shouldn't we crush Russia?
1. No matter what we do, Russia will not disappear. If the Putin regime collapses, some other regime will replace it. The new regime is not likely to be nicer than Putin's, but it could be worse. Either it, or the Putin regime, could use their very significant nuclear arsenal to try to prevent collapse. Even without an apocalypse, we should have some modesty about our ability to shape Russia after the crushing. We had great confidence that we could create something better in Afghanistan, Iraq, and Libya, but I don't think it's clear that we succeeded.
2. Alternatively, the collapse of the Putin regime could lead to the dissolution of the Russian state. This could lead to instability spreading to neighboring countries. Some of the fragments may be host to criminal or terrorist groups much worse than anything currently in Russia.
3. It would take a great deal of effort by us and our allies to significantly weaken Russia. Aside from the above, this is a questionable use of limited American resources, and it's not clear our allies would support us in this effort, although they seem to be at least as anti-Russian as we are, for now.
4. A weaker Russia isn't necessarily in our interest. The clearly rising power in the world is China, which is also not a liberal democracy, and doesn't play by liberal rules. China is really more of a threat to Russia and its interests than it is to us and ours, so we could use a friendly Russia to help contain China. We are currently doing a lot to ensure that Russia is never friendly, but we could reverse these policies.
You, like most western commentators I've seen, seem to make an assumption that Russia is the way it is because Putin, a bad person, is leading it. I think it's closer to the truth to say that Putin is in charge because he sees what needs to be done to preserve the stability, power, and influence of the Russian state, and is willing to do it. His replacement might be weaker, but probably wouldn't be better in a moral sense, or in terms of our interests.
Thanks for this thoughtful response; you make some very good points. I acknowledge the risk of the unknown.
I don’t purport to be an expert in Russian history, but Putin does seem to be the worst leader of Russia in a long time, and I don’t know that it would get worse without him. I think we—and the Russian people, and the general region—might be better off with a Medvedev or Yeltsin or Gorbachev, to name some actual past leaders of Russia/the U.S.S.R. Do you disagree?
I'm not sure what you mean by "worst". I don't think Putin has imprisoned nearly as many people as the Soviet regime did, and he certainly isn't controlling other countries to nearly the extent the Soviet regime did. He's fighting us more than his predecessors, in large part because we've acted on the assumption, for the last 30 years, that we could do what we want and Russia couldn't do anything about it. Putin has decided he needs to do something about it, and that he can.
Gorbachev was a sclerotic apparatchik leading other sclerotic apparatchiks. He was better for US interests than Stalin was, in part because he and his regime were sclerotic, unwilling to take risks. But I expect he would have looked a lot different if we had tried to induce a revolt in Ukraine to get it to leave the Soviet Union.
Yeltsin might look better to us - he at least went through the motions of trying to lead Russia into a liberal, capitalist future. But he failed, Russians ended up reviling him, and he was forced out by Putin because of it.
Gorbachev seemed like an idealist, but he was also put in power by the Soviet apparatus. He thought he needed to modernize and reform the economy in order to prevent collapse; in the end his reforms led to collapse. Whether that's "better" is a matter of judgment, but most Russian people don't think he did well. And I don't think a new Gorbachev would have any hope of getting power.
We need to keep some modesty about what is achievable. As I said initially, I'd be delighted if everyone could live in a liberal democracy. That doesn't mean our policy should try to remake other countries into liberal democracies.
Withdrawing might be more symbolic than anything else. That doesn’t mean law firms shouldn’t do it, but don’t kid yourselves about whether this will make a difference in the real world. Putin is a thug who will do what he wants to do, and he doesn’t care whether Cleary still has a Moscow office.
I agree with the first anonymous comment Lat posted. I object strongly to Russia's invasion of Ukraine. I support measures aimed at stopping that and/or punishing those responsible. I support the sports competitions and associations that have banned Russian teams--on the theory that those teams represent Russia, and that the Putin regime uses athletes for propaganda. I also support sanctions. They're a blunt instrument and they'll unfortunately visit the most harm on 150 million innocent Russians who aren't really responsible for the invasion--but they're probably preferable to direct military intervention and are perhaps the best way to communicate with a population that's being deprived of information right now.
What I don't support is the trend of hating all things Russian, or antagonizing individual Russians who've left Russia. Russian-themed restaurants in NYC, Russian-citizen artists performing abroad, individual Russian immigrants you know, books and music by Russian authors and composers--it makes no sense to go after any of this. I thought there was a broad consensus in 2022 that the Japanese internment camps were bad, and that the "freedom fries" trend from about 20 years ago was pointless.
With that, I think anyone who says that multinational law firms should out of Russia should explain why. If sanctions require withdrawal, so be it. If the crash of the ruble means it's bad business decision to stay, so be it as well. But what I don't get is the argument that law firms have a moral responsibility to pull out. What harm is done by providing legal services in Russia? What purpose is served by withdrawing them?
I think the spirit of Rule 8.4 of professional conduct might come into play here. It is one thing to help clients who have committed a crime. It is something quite different to be participants in a crime.
Now the work that is being done in Russia may not fit into “participants of a crime” prohibition. But it may also be more than just advising people who have done something wrong.
Prof. Burke-White might be making a distinction without a difference: my impression, based on practice in this space, is that the largest Russian “corporate” entities (particularly in the banking and oil & gas spaces) are either directly or indirectly (i.e., controlled by oligarchs with coerced loyalty to Putin & his henchmen) state owned. Russia-based Biglaw regularly represents these types of clients (Latham & Watkins is not exactly representing Boris and Natasha’s Blini Shop). Unfortunately, these firms don’t seem to want to let go of lucrative and reliable business and are using our profession’s commitment to unpopular representation as a shield against well-earned criticism.
Thank you for the article. All companies should get out of Russia, including law firms. There is no justification for what Russia has done to Ukraine - unkept ceasefires, shelled hospitals, dead children. Businesses operating in Russia pay taxes on profits, thereby funding Russian belligerence. American companies should have no part in it. Congress should make it illegal to conduct business in Russia (like Cuba, Iran, North Korea, Syria). Thankfully, there are law firms such as Akin Gump, Cleary, Latham, Morgan Lewis, Norton Rose, and Squire who are voluntarily ceasing operations in Russia. The rest should follow.
p.s. Here is a list that indicates which firms are shutting down in Russia: https://docs.google.com/spreadsheets/d/12e7zWfKicBDzLsm0RPMGry3t51sIuD8jnjOsCuczdyE/edit?usp=sharing
This list is a great resource! Thank you for sharing it (and maintaining it if you're also the creator).
I'll try to keep it up to date as more information becomes available.