Notice And Comment: What Should Biglaw Leaders Say About Dobbs?
Plus a roundup of what law firms have said so far about the Supreme Court's new abortion ruling.
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After I wrote about conservative Supreme Court litigators Paul Clement and Erin Murphy leaving Kirkland & Ellis because the firm decided it would no longer handle Second Amendment cases, a reader emailed me to ask, “Is there any room left for conservatives/not extreme leftists in Biglaw?”
I said yes—and not just at places like Jones Day, known for its conservative bent. There are prominent conservatives at other top law firms, especially in appellate and Supreme Court practices. But I acknowledged that it’s getting harder to be conservative in Biglaw, especially if you’re not quiet about your beliefs—e.g., you want to litigate for conservative causes—and especially if you’re conservative on social issues like abortion, guns, and gays. (Being pro-business in Biglaw is fine.)
This brings me to today’s Notice and Comment topic: how should law firms respond to Dobbs v. Jackson Women’s Health Organization, the major abortion decision that the Supreme Court issued last Friday? In Dobbs, the Court held that the Constitution does not protect the right to an abortion, and it overruled two landmark precedents, Roe v. Wade and Planned Parenthood v. Casey, that held otherwise.
What have Biglaw firms said publicly and officially about Dobbs? Not much. According to Reuters, as of Saturday afternoon only one such firm, Morrison & Foerster, had issued a public statement. Compare this to the more than 70 firms that issued public statements about racial injustice after the murder of George Floyd. As law firm consultant Kent Zimmermann told Reuters, Dobbs is “a tightrope to walk for firms. They have a diversity of views among their talent and clients.”
But several law firm leaders have made internal statements in firm-wide emails. They include Ropes & Gray chair Julie Jones, Paul Weiss chair Brad Karp, Steptoe & Johnson chair Gwen Renigar, Akin Gump chair Kim Koopersmith, Morgan Lewis chair Jami Wintz McKeon, and Dechert chair Andy Levander and CEO Henry Nassau.
Conveniently collected over at Law.com, their statements generally lament or condemn Dobbs, express concern for the individuals who will be affected by the ruling, pledge to support pro bono work defending abortion rights, and state that the firm is covering (or looking into covering) travel costs incurred by employees seeking abortions out of state. Above the Law is also tracking which firms have committed to this benefit; as of this writing, around 16 firms in the Am Law 100 have said that they will pay for such expenses or are looking into doing so.
Is it appropriate for law firm leaders to speak out against Dobbs? One reader—the reader who gave me the idea for this discussion topic—thinks not:
Please write something about the emails that managing partners and other leaders at Biglaw firms are sending out to all staff in the wake of Dobbs.
The head of litigation at one of Latham’s largest European offices sent around an email declaring himself “shocked and angered” by the decision. Why are leadership figures at these huge firms creating a hostile work environment for all their valuable, non-progressive lawyers like this?
Can you imagine how Biglaw would react if a managing partner sent out a similar email aggressively denigrating the result in Obergefell or McGirt? There would be outrage.
After I told my correspondent that at least one firm gave employees the day off when Dobbs came down, she responded:
My god: they get a day off? Lunacy. As a person with a uterus, I think these people badly need to get a grip.
This reader has strong opinions. And I bet many of you do as well.
This is a Notice and Comment post, where I ask you, my readers, to share your views in the comments. As I usually do with Notice and Comment posts, I have opened up comments to all readers, not just paid subscribers. I look forward to hearing your thoughtful, politely expressed perspectives on this sensitive subject.
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One though I should have noted in my post: this is an issue faced not just by Biglaw firms but by smaller law firms and by businesses outside of law, including companies large and small. The Law.com roundup I link to in my post includes statements from some prominent firms not in the Am Law 100, including the litigation powerhouses of Susman Godfrey and Ahmad, Zavitsanos & Mensing aka AZA (both firms that started in Texas, where abortion is now illegal after about six weeks of pregnancy).
Of course, smaller firms/boutiques might find these issues less difficult than Biglaw firms with thousands of lawyers across the globe. More lawyers = more opportunity for disagreement. And many boutiques are not as ideologically diverse as large multinational law firms, whether it's Kaplan Hecker or Gupta Wessler on the left versus Cooper & Kirk and Consovoy McCarthy on the right. It's not hard for these firms to figure out what they should or shouldn't say about contentious issues.
The Law.com roundup: https://www.law.com/americanlawyer/2022/06/27/law-firms-statements-on-the-overturning-of-roe-v-wade/
Posting on behalf of a reader who emailed me (if you prefer, you can email me and authorize me to post in the comments anonymously on your behalf, as I'm doing now):
"It has been a while since I worked for a big firm (Cleary Gottlieb), but one of the things I loved about it was the diversity of political views, from the partner next door who had clerked for and revered Chief Justice Burger to others with strong Democratic resumes. And Cleary Gottlieb never, never sent a firm-wide memo commenting on a political issue. So I am inclined to agree with the woman who wrote to you; if firms want real diversity, of views, they should not be sending memos to all employees setting out the 'official' view on controversial cases. I recall after Obergefell came down, our Episcopal priest included in the Sunday service 'thanks' for the 'great' decision. I was uncomfortable, I knew there were folks in the pews who disagreed, but they could not express that, now that there was an 'official' view. I feel the same about law firms taking positions on controversial Supreme Court cases."