On The Need For Diverse Viewpoints In Biglaw

Ideological uniformity in Biglaw, whether on the right or the left, is not a good thing.

The Supreme Court of the United States, July 2022 (photo by David Lat).

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Last week, I published a Boston Globe op-ed about the benefits to Biglaw of viewpoint diversity—i.e., having lawyers and staff who come from across the ideological spectrum. The essay was behind the Globe’s paywall, so some of you weren’t able to read it.

Fortunately, under the terms of my freelancer’s agreement with the Globe, I’m now able to publish it digitally. It appears below, for those of you who weren’t able to read it previously.

The Globe’s copy editors gave my piece its title, “Big Law’s Cancel Culture.” As a freelancer, I didn’t come up with it, and I wasn’t consulted about it. I would have chosen something different, mainly because I think the term “cancel culture” at this point carries with it a lot of baggage, and some folks will just tune out anything that comes after those words. Personally speaking, I think it’s more productive to talk about the fairness or unfairness of particular incidents or situations than to just slap on a label like “cancel culture.”

My essay generated ample engagement, including lots of comments on the Globe website, plenty of tweets, and detailed and thoughtful responses by Joe Patrice of Above the Law and Jay Willis of Balls and Strikes. I addressed some of the most common critiques in a Twitter thread, but I’ll probably write a follow-up post as well. For better or worse, these issues aren’t going away anytime soon, so we might as well talk about them. [UPDATE (2/17/2023): Here’s the follow-up piece, More Thoughts On Intellectual Diversity In Biglaw.]

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Big Law’s cancel culture

Ideological uniformity in Big Law, whether on the right or the left, is not a good thing — not for lawyers, law firms, and the rule of law.

By David Lat

On the morning of June 23, the U.S. Supreme Court issued a landmark opinion in New York State Rifle & Pistol Association v. Bruen, holding that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home. You might have expected the lawyers who won the case, celebrated Supreme Court litigators Paul Clement and Erin Murphy, to receive congratulations within their firm for such a major victory.

Instead, they received walking papers. That afternoon, Clement and Murphy announced in the Wall Street Journal that they were leaving Kirkland & Ellis, the nation’s highest-grossing law firm. Why? Because Kirkland presented them with an ultimatum: withdraw from representing clients in Second Amendment cases, including existing clients in ongoing representations, or withdraw from the firm.

“We couldn’t abandon our clients simply because their positions are unpopular in some circles,” the lawyers wrote. So they left Kirkland to start their own litigation firm.

It’s not just representing unpopular clients; even articulating an unpopular opinion might be a fireable offense today in the world of large law firms (aka “Big Law”). Take support for the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and sent abortion back to the states. At least two antiabortion women partners allege — one in the Wall Street Journal and one in Original Jurisdiction, my newsletter about the legal profession — that their support for Dobbs played a major role in their being forced out of their firms.

These are not isolated incidents. Other situations have involved lawyers being criticized for expressing concerns about the transgender rights movement, clerking for judges appointed by former president Donald Trump, or working for faith-based public-interest organizations.

Of course, it’s not a recent development that large law firms are overwhelmingly liberal (as reflected in, for example, their lopsided contributions to political campaigns). What’s different today is not only the partisan intensity but the possibility that you might lose your job for holding the wrong views. Simply put, Big Law — the nation’s largest, most prestigious, most profitable law firms, which in many ways set the norms for the rest of the legal profession — is currently seized by ideological intolerance and groupthink. (There are some exceptions — most notably Jones Day, which gained notoriety for its work on behalf of Trump.)

Some might say: So be it. A private law firm is generally free to suppress or punish opinions from its employees that it or its clients might find distasteful (consistent with specific state laws protecting employee speech and political activity). If a law firm wants to brand itself the “woke” law firm or the “MAGA” law firm, taking on only those lawyers and clients who pass its ideological litmus test, it has a free-association right under the First Amendment to do so.

This view is understandable but wrongheaded. Ideological uniformity in Big Law, whether on the right or the left, is not a good thing — not for lawyers, law firms, or the rule of law.

To successfully represent their clients, lawyers need to understand all sides of an issue, which is why research shows that ideologically diverse teams are more effective teams. If liberal or progressive lawyers are not exposed to conservative viewpoints, they will be less effective as advocates — especially when arguing before conservative courts, of which there are plenty (including the current Supreme Court).

As for the rule of law, here’s what Clement and Murphy wrote in the Wall Street Journal: “Our adversarial system of justice depends on the representation of controversial clients, no matter which side has most of big law rooting for it. This is particularly true in constitutional cases. Many of our fundamental constitutional guarantees are designed to be counter majoritarian, and many have been vindicated by litigants who are deeply unpopular.”

As the majority within Big Law, left-leaning lawyers might be perfectly happy to enjoy dominating their workplaces. But they should keep in mind that beyond Big Law, a “majority rules” approach to free speech can lead to terrible outcomes, including bans on everything from teaching critical race theory to the novels of Toni Morrison.

The conservatives behind these bans share the same reasoning as progressives in Big Law: If something offends us, it must be cast out. But this logic leads to nothing more than an endless cycle of dominant parties using (or abusing) their power to punish opposing opinions. Firms should instead aspire to environments in which people of radically different viewpoints can coexist in mutual toleration, respect, and maybe even admiration — for the deeply held, carefully considered views of their adversaries, even if they disagree vehemently with those views.

Turning to the practical, how can managing partners and other Big Law leaders combat this epidemic of intolerance? How can they promote ideological diversity and free expression within their organizations?

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.

Second, they should stop issuing statements weighing in on every controversy in the news, including statements condemning everything from Russia’s invasion of Ukraine to the Supreme Court’s decision in Dobbs. Yes, the Russian invasion of Ukraine deserves condemnation — but are law firms the ones to be doing it? Law firms are collections of lawyers — ideally, lawyers of diverse viewpoints — who have come together to practice law. They’re not think tanks, editorial boards, or Hollywood celebrities, and opining on the issues of the day is not their job. But when law firms issued statements condemning Dobbs — or even gave employees the day off after the ruling came down — they sent a message about which side they were taking in the culture wars.

Finally, if law firms are going to have diversity training — which may or may not be a good thing — and if they are going to encourage lawyers to “bring their whole selves” to work, then perhaps they should have training about respectful discourse. This fall, Yale Law School, which had significant problems last year relating to free speech, redesigned its orientation for new students “to center around discussions of free expression and the importance of respectful engagement.” Perhaps law firms should follow suit.

In our adversarial system of justice, part of a lawyer’s job is to disagree with other lawyers. We must find our way back to the time when lawyers could disagree with each other and not disagreeably — for the sake of lawyers, the legal profession, and the rule of law.

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