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.
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."
Jun 28, 2022·edited Jun 28, 2022Liked by David Lat
The difference between Dobbs and Obergefell and McGirt is that only Dobbs results in a fundamental right being taken away. This will have a substantial impact on their employees and women in general.
Even conservatives should be incredibly concerned about a Court doing away with precedent it doesn’t like and eliminating fundamental rights. The elimination of fundamental rights hurts everybody, even conservatives.
If conservative employees are upset about this they just have to deal with it. I am sorry, nobody is taking their rights away (other than SCOTUS). They can celebrate with FedSoc some other time.
A substantial number of persons, including many employees at these firms, have been suddenly deprived of an existential and highly consequential right. This is a fact. This constitutes an injury. This is also a fact. Many people are are shocked and angered by this injury. This, too, is a fact.
There are those who feel the exercise of that right is immoral. They were already in possession of the ability to not exercise that right. The chilling effect your corespondent alludes to relates to her freedom to comfortably, and without personal consequence, express one of two things: firstly, that she believes the exercise of the right is immoral, or secondly, that she believes that it is good that the right has been deprived.
I cannot think of a circumstance in which one could express to someone, comfortably and without personal consequence, that their existentially germane rights are immoral to exercise, and that you believe they should be deprived of those rights. To express such things is to introduce an irreparable enmity.
Thus I am incredulous that you would entertain your correspondent's complaint that it is somehow unfair to her, in this moment of shock and injury, that attestations of support and comfort to the bereaved would interfere with her sense of freedom to express, comfortably and without personal consequence, a desire to injure them.
Whatever my views politically, I think a law firm of all places supposedly dedicated to fair representation for all should not take sides. They should represent all sides but allow for individuals to not serve with a moral objection on either side.
I work in the corporate world so I am used to a progressive view being considered the norm even when it is not amongst the employees in all cases.
As an attorney who is fundamentally pro-choice from a policy standpoint and who thinks Roe and Casey were wrongly decided, I think firms should be intellectually honest, acknowledge that the constitutional issues are, at best, unsettled, express compassion for those who will be negatively impacted by the decision and encourage those who feel strongly about the issue either way to to respect their colleagues who feel differently and be advocates for their views in the normal political process outside of the work environment. Of, course, this basically is my position on every contentious legal and political issue.
They shouldn't say a word on the merits. Unlike Kirkland, however, they should say that their lawyers have the ability to represent parties on both sides of the issue.
Law firms are employers, and it's logical for employers to show empathy when a large chunk of their employees are distraught.
I wonder if there's a generational divide at play in the background, as boomers and GenXers may not be building their families any more and thus may not take the Dobbs ruling as personally as millennials and GenZers.
Also, many lawyers entered the profession because they care deeply about the rule of law. Some of this month's Supreme Court opinions may have rattled that self-identity and prompted lawyers to question if they are unwitting participants in a nationwide game of Calvinball.
Jun 28, 2022·edited Jun 28, 2022Liked by David Lat
Conservatives are not affected by the ability of other leaders to get abortion. If Dobbs had gone the other way, their lives wouldn’t change. It is absolutely appropriate for firms to speak out against a ruling that strips basic rights from half the population.
I never worked in BigLaw. But as we learned in law school, there are often differing ways of viewing the facts and the law. Too often the news sensationalizes the cases, and too many lawyers take the bait (and don't actually read the opinions). Cancel culture is immature and a reflection of how our discourse has deteriorated. It has no place in BigLaw or anywhere else for that matter.
The days off are a PC response that rival the mental health days and expressions of mourning at certain prominent institutions of higher education in the aftermath of Trump winning in 2016. One wonders if any of these individuals ever mourned or expressed concern over the death of a teen due to pandemic caused boredom which led to suicide, a Fentanyl caused drug overdose in the rust belt, the passing of a dear friend, mentor, an elderly person or relative or an inner city crime victim This is what happens when the woke agenda serves as a substitute for authentic religious values.
I would recommend a firm make no statement whatsoever. Our current discourse heavily involves categorizing statements. Even the quintessential even-handed response can be construed as “both sides-ism” or a lack of consideration for the gravity of the ruling. The truth is, the spectrum of opinion regarding abortions (when combined with a federalism v. national course of action) is too broad.
In sum, no firm can make craft a statement that accurately conveys its position. Readers and commenters will undoubtedly misinterpret and/or read intention inaccurately. The cost outweighs the benefits.
BigLaw firms talk a lot about diversity, but they assume their lawyers are politically uniform. Still, it does not take a hardcore conservative to spot the remarkably weak legal rationale of Roe. One would think any BigLaw lawyer worth his salt could read the Dobbs opinion and agree that Alito’s got a point….
1. <b>I don't mind when law firms simply acknowledge when something in the news affects a lot of people or when the firm announces that it's actually going to do something about it. </b> The George Floyd stuff personally bothered a lot of people, and I didn't mind when my firm acknowledged it. When Russia invaded Ukraine, I didn't mind when my firm sent a list of charities around for those who were looking to help somehow but didn't know who was doing what and didn't want to be scammed. If a firm wants to announce that it'll pay for abortion travel, I don't mind them simply saying so.
2. <b>I do mind that my law firm chair has recently gotten in the habit of pontificating about this stuff. It strikes me as insincere, divisive, and unseemly.</b> The heads of these law firms are obscenely rich capitalists who represent oil companies, tobacco companies, private equity, and all of the corporate villains of the world. Some of these people are individually disgusting in their personal lives (e.g., as a partner, long history of using the female associates as a dating pool). These people are in no position to lecture their employees about morality or politics, either individually or behalf of their firms. When they do, it comes across to me as either (a) slavish repetition of whatever cause is popular among our corporate clients, or (b) signalling to the rest of us that there's only one acceptable opinion on certain subjects. As to (b), it's almost as if law firms and corporate america have been taken over by a trash religion and feel the need to proselytize and to condemn apostasy. These people seem satisfied with themselves, but they're surely just saying what they perceive people with power over them want to hear.
3. <b>I also mind when my firm takes sides</b> After watching cities burn all summer after police killed George Floyd, I was a bit disgusted when my firm started donating to BLM groups and paying exorbitant speaker fees to have Ibram Kendi and Robin DiAngelo preach at us.
4. <b>On Dobbs,</b>, lawyers should be the first to understand the value of the system. The reason it's not per se morally reprehensible to represent guilty tortfeasors and criminals, or predatory banks is that the legal system provides a civilized way of settling disputes. We have laws, procedures, juries, and an adversary system instead of just the strong preying on the weak. For Dobbs, one view is that the Supreme Court took away a right that's important to most or all women, and that feels wrong to a lot of people. Another view is that Roe and Casey were lawless decisions, whatever one thinks of abortion it isn't in the constitution, and our government works best when each branch of government stays in its lane. That latter view is unfashionable in corporate America right now, and the Breyer-Kagan-Sotomayor dissent eloquently criticized that framing, but it's troubling to me when a major law firm sends the message that that view of the law is unacceptable.
5. <b>I wish more law firms could be like coinbase</b>. Do your work at work and your politics at home. Also, once the firm chair starts pontificating about current events, I think s/he falls into a trap. With every new event, people will look to the firm chair for a new statement. If the firm chair is silent, too strident, or not strident enough, people will feel entitled to criticize. And you can never please all of the people all of the time.
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."
The difference between Dobbs and Obergefell and McGirt is that only Dobbs results in a fundamental right being taken away. This will have a substantial impact on their employees and women in general.
Even conservatives should be incredibly concerned about a Court doing away with precedent it doesn’t like and eliminating fundamental rights. The elimination of fundamental rights hurts everybody, even conservatives.
If conservative employees are upset about this they just have to deal with it. I am sorry, nobody is taking their rights away (other than SCOTUS). They can celebrate with FedSoc some other time.
Biglaw should just stfu about everything and just bill. We don’t need their opinions.
A substantial number of persons, including many employees at these firms, have been suddenly deprived of an existential and highly consequential right. This is a fact. This constitutes an injury. This is also a fact. Many people are are shocked and angered by this injury. This, too, is a fact.
There are those who feel the exercise of that right is immoral. They were already in possession of the ability to not exercise that right. The chilling effect your corespondent alludes to relates to her freedom to comfortably, and without personal consequence, express one of two things: firstly, that she believes the exercise of the right is immoral, or secondly, that she believes that it is good that the right has been deprived.
I cannot think of a circumstance in which one could express to someone, comfortably and without personal consequence, that their existentially germane rights are immoral to exercise, and that you believe they should be deprived of those rights. To express such things is to introduce an irreparable enmity.
Thus I am incredulous that you would entertain your correspondent's complaint that it is somehow unfair to her, in this moment of shock and injury, that attestations of support and comfort to the bereaved would interfere with her sense of freedom to express, comfortably and without personal consequence, a desire to injure them.
Whatever my views politically, I think a law firm of all places supposedly dedicated to fair representation for all should not take sides. They should represent all sides but allow for individuals to not serve with a moral objection on either side.
I work in the corporate world so I am used to a progressive view being considered the norm even when it is not amongst the employees in all cases.
As an attorney who is fundamentally pro-choice from a policy standpoint and who thinks Roe and Casey were wrongly decided, I think firms should be intellectually honest, acknowledge that the constitutional issues are, at best, unsettled, express compassion for those who will be negatively impacted by the decision and encourage those who feel strongly about the issue either way to to respect their colleagues who feel differently and be advocates for their views in the normal political process outside of the work environment. Of, course, this basically is my position on every contentious legal and political issue.
They shouldn't say a word on the merits. Unlike Kirkland, however, they should say that their lawyers have the ability to represent parties on both sides of the issue.
Law firms are employers, and it's logical for employers to show empathy when a large chunk of their employees are distraught.
I wonder if there's a generational divide at play in the background, as boomers and GenXers may not be building their families any more and thus may not take the Dobbs ruling as personally as millennials and GenZers.
Also, many lawyers entered the profession because they care deeply about the rule of law. Some of this month's Supreme Court opinions may have rattled that self-identity and prompted lawyers to question if they are unwitting participants in a nationwide game of Calvinball.
Conservatives are not affected by the ability of other leaders to get abortion. If Dobbs had gone the other way, their lives wouldn’t change. It is absolutely appropriate for firms to speak out against a ruling that strips basic rights from half the population.
After 20 years of heading a BigLaw firm, my advice to law firm leaders would be to avoid virtue signaling and pandering. Oops. Too late.
I never worked in BigLaw. But as we learned in law school, there are often differing ways of viewing the facts and the law. Too often the news sensationalizes the cases, and too many lawyers take the bait (and don't actually read the opinions). Cancel culture is immature and a reflection of how our discourse has deteriorated. It has no place in BigLaw or anywhere else for that matter.
The days off are a PC response that rival the mental health days and expressions of mourning at certain prominent institutions of higher education in the aftermath of Trump winning in 2016. One wonders if any of these individuals ever mourned or expressed concern over the death of a teen due to pandemic caused boredom which led to suicide, a Fentanyl caused drug overdose in the rust belt, the passing of a dear friend, mentor, an elderly person or relative or an inner city crime victim This is what happens when the woke agenda serves as a substitute for authentic religious values.
I would recommend a firm make no statement whatsoever. Our current discourse heavily involves categorizing statements. Even the quintessential even-handed response can be construed as “both sides-ism” or a lack of consideration for the gravity of the ruling. The truth is, the spectrum of opinion regarding abortions (when combined with a federalism v. national course of action) is too broad.
In sum, no firm can make craft a statement that accurately conveys its position. Readers and commenters will undoubtedly misinterpret and/or read intention inaccurately. The cost outweighs the benefits.
BigLaw firms talk a lot about diversity, but they assume their lawyers are politically uniform. Still, it does not take a hardcore conservative to spot the remarkably weak legal rationale of Roe. One would think any BigLaw lawyer worth his salt could read the Dobbs opinion and agree that Alito’s got a point….
1. <b>I don't mind when law firms simply acknowledge when something in the news affects a lot of people or when the firm announces that it's actually going to do something about it. </b> The George Floyd stuff personally bothered a lot of people, and I didn't mind when my firm acknowledged it. When Russia invaded Ukraine, I didn't mind when my firm sent a list of charities around for those who were looking to help somehow but didn't know who was doing what and didn't want to be scammed. If a firm wants to announce that it'll pay for abortion travel, I don't mind them simply saying so.
2. <b>I do mind that my law firm chair has recently gotten in the habit of pontificating about this stuff. It strikes me as insincere, divisive, and unseemly.</b> The heads of these law firms are obscenely rich capitalists who represent oil companies, tobacco companies, private equity, and all of the corporate villains of the world. Some of these people are individually disgusting in their personal lives (e.g., as a partner, long history of using the female associates as a dating pool). These people are in no position to lecture their employees about morality or politics, either individually or behalf of their firms. When they do, it comes across to me as either (a) slavish repetition of whatever cause is popular among our corporate clients, or (b) signalling to the rest of us that there's only one acceptable opinion on certain subjects. As to (b), it's almost as if law firms and corporate america have been taken over by a trash religion and feel the need to proselytize and to condemn apostasy. These people seem satisfied with themselves, but they're surely just saying what they perceive people with power over them want to hear.
3. <b>I also mind when my firm takes sides</b> After watching cities burn all summer after police killed George Floyd, I was a bit disgusted when my firm started donating to BLM groups and paying exorbitant speaker fees to have Ibram Kendi and Robin DiAngelo preach at us.
4. <b>On Dobbs,</b>, lawyers should be the first to understand the value of the system. The reason it's not per se morally reprehensible to represent guilty tortfeasors and criminals, or predatory banks is that the legal system provides a civilized way of settling disputes. We have laws, procedures, juries, and an adversary system instead of just the strong preying on the weak. For Dobbs, one view is that the Supreme Court took away a right that's important to most or all women, and that feels wrong to a lot of people. Another view is that Roe and Casey were lawless decisions, whatever one thinks of abortion it isn't in the constitution, and our government works best when each branch of government stays in its lane. That latter view is unfashionable in corporate America right now, and the Breyer-Kagan-Sotomayor dissent eloquently criticized that framing, but it's troubling to me when a major law firm sends the message that that view of the law is unacceptable.
5. <b>I wish more law firms could be like coinbase</b>. Do your work at work and your politics at home. Also, once the firm chair starts pontificating about current events, I think s/he falls into a trap. With every new event, people will look to the firm chair for a new statement. If the firm chair is silent, too strident, or not strident enough, people will feel entitled to criticize. And you can never please all of the people all of the time.