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Yesterday was quite a day for Paul Clement, the celebrated Supreme Court litigator who served as the 43rd Solicitor General of the United States. In the morning, the Court ruled in his favor in New York State Rifle & Pistol Assn., Inc. v. Bruen, the most significant Second Amendment case since D.C. v. Heller. In the afternoon, he and his longtime colleague Erin Murphy announced their departure from Kirkland & Ellis to start a new appellate boutique, Clement & Murphy, PLLC.1
The developments are not unrelated. After Bruen came down, Kirkland announced that it will “no longer represent clients with respect to matters involving the interpretation of the Second Amendment.” It will also withdraw from all pending cases implicating the right to bear arms, including ongoing representations by Clement and Murphy—a policy to which the two lawyers couldn’t accede.
“We do not take this step lightly,” Clement said in a statement. “Kirkland is a storied firm, and we have many friends and valued colleagues there. Unfortunately, we were given a stark choice: either withdraw from ongoing representations or withdraw from the firm. Anyone who knows us and our views regarding professional responsibility and client loyalty knows there was only one course open to us: We could not abandon ongoing representations just because a client’s position is unpopular in some circles.”
What does Kirkland have to say? Jon Ballis, chairman of K&E’s executive committee, said in a statement, “Paul and Erin have been valued colleagues. We wish them the best of luck in the future, and we look forward to collaborating with them in the future in matters not involving the Second Amendment.”
This isn’t the first time Paul Clement has left a firm amid a case-related controversy. As I reported back in April 2011, he departed from King & Spalding after it moved to withdraw from defending the Defense of Marriage Act (“DOMA”), a matter he brought into the firm. In his resignation letter, he wrote that “a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”
Clement took the DOMA case to his new firm, Bancroft PLLC, the elite conservative boutique founded by Viet Dinh, a friend of his from their time together as Harvard Law students and again as Justice Department colleagues in the second Bush Administration. Erin Murphy, an associate at the time, moved along with Clement.
Although Clement lost the DOMA case before SCOTUS, in a 5-4 decision in United States v. Windsor, he had a successful five-year run at Bancroft. Reflecting that success, Kirkland hired all 17 of Bancroft’s lawyers in 2016, bringing Clement back into Biglaw. Kirkland turned out to be an excellent platform, where he and Murphy built a thriving appellate and Supreme Court practice—until today.
Clement and Murphy wrote about their departure from K&E in a Wall Street Journal op-ed. Their piece makes it sound like everything unfolded in a day: they won Bruen, they received the ultimatum, they left. But my guess is that Kirkland informed Clement of its plan to withdraw from Second Amendment cases—and Clement and Murphy developed their plan to start a new firm—sometime before yesterday.
According to ICANN registration data, the new firm’s domain name was registered on Tuesday. And the press release and WSJ op-ed came out just a few short hours after Bruen. As another prominent SCOTUS litigator quipped to me, “Who among us doesn't have a WSJ op-ed locked and loaded in case we get forced out of our firm?”
In their Journal piece, Clement and Murphy allude to their King & Spalding departure, but argue that what happened at Kirkland is more problematic:
This isn’t the first time we have left a firm to stick by a client. What makes this circumstance different is that the firm approved our representation of these clients years ago, and dropping them would cost the clients years of institutional memory. More remarkable still, in one of the cases we were asked to drop, we prevailed in the Supreme Court on Thursday. Those who object to the representation are thus taking issue with the Constitution as interpreted by a majority of the high court.
Back in 2011, King & Spalding chairman Robert Hays defended the firm’s DOMA withdrawal by claiming that “the process used for vetting this engagement was inadequate.” That wasn’t implausible, given the timetable: Clement was hired by the House of Representatives to defend DOMA around April 18, and Clement left K&S a week later, on April 25. But Kirkland can’t make any such claim here.
As critics of Kirkland were also quick to note, it has represented and still represents many unpopular clients, including BP in the Deepwater Horizon oil spill and the late Jeffrey Epstein in his 2007 sweetheart plea deal. But as K&E critics also noted, defending fossil-fuel companies and wealthy financiers is far more lucrative than Second Amendment work (on a pro bono basis, I’m guessing).
So that’s the news; I’m also here to tell you the significance of the news, which is what you pay me for. Here are two larger stories reflected in “Clement out at Kirkland.”
1. Kirkland & Ellis has evolved from a litigation firm to a transactional one.
For most of its 113-year history, Kirkland was known for litigation. On this list of notable K&E alumni, many of the names you’ll recognize—former attorney general Bill Barr, former solicitors general Robert Bork and Ken Starr, and a dozen current and former judges, including Justice Brett Kavanaugh—were litigators at the firm.
As chronicled in the Financial Times, that started changing in 2010, when Jeffrey Hammes became chair of K&E’s executive committee. A private-equity lawyer himself, Hammes focused on growing K&E’s transactional practice—and succeeded spectacularly. The explosion of K&E’s corporate practice brought rich rewards: $6 billion in revenue, making the #1 firm in the Am Law 100, and more than $7 million in profits per equity partner, second only to Wachtell Lipton. But it also transformed Kirkland’s identity from “top litigation shop” to “private-equity powerhouse.”
According to the FT, a decade ago the revenue split between litigation and transactional work at Kirkland was 50-50; today, deal work accounts for 75 percent of revenue. And in Biglaw, power follows money—which is why Jeff Hammes was succeeded as chair in 2020 by another PE partner, Jon Ballis, and why the representation of litigators on K&E’s powerful executive committee has plummeted.
Along with Jones Day, Kirkland was the top “feeder firm” to the Trump Administration, with a slew of K&E litigators joining up. But while Jones Day welcomed back many of these litigators, Kirkland took back just one (Brian Benczkowski, who led the Justice Department’s Criminal Division). Some observers viewed this as reflecting the radioactivity of the Trump Administration, and there’s some truth to that; K&E wasn’t bringing back Jeffrey Clark, whose home just got raided by federal investigators. But I saw it mainly as a reflection of Kirkland 2.0: “Litigators, we’re just not that into you.”
This brings us to the Paul Clement and Erin Murphy departure. Yes, their practice is very profitable; I’m guessing their book of business is in the tens of millions. But their gun-rights work threatened relationships with transactional clients that Kirkland prized more, as reported by Jess Bravin of the Wall Street Journal:
After recent mass shootings, Kirkland clients began expressing reservations over the firm’s work for the gun movement, a person familiar with the matter said. Kirkland “started getting a lot of pressure post-Uvalde, hearing from several big-dollar clients that they were uncomfortable,” this person said. “Several partners agreed that they should drop that representation.”
Kirkland’s concerns probably go beyond clients to include talent acquisition as well. As Robins Kaplan appellate partner Glenn Danas put it on Twitter (with my edits in brackets), “K&E decided it was more important [for it to] be able to recruit top junior associates [to toil away on PE M&A deals] than to retain gun work. A decision that’s probably easier to make when making $6B per year as a firm.”
2. If you want to work at a law firm handling fascinating, hot-button cases, hie thee to a litigation boutique.
The ascendancy of litigation boutiques and litigation-only firms too large to qualify as boutiques—e.g., Quinn Emanuel, Boies Schiller, Susman Godfrey—has been going on for a while. And conservative, D.C.-based boutiques with strong appellate practices are also nothing new. See, e.g., Cooper & Kirk and Consovoy McCarthy. But here’s what L’Affaire Clement makes me wonder: if you’re interested in litigating high-profile, cutting-edge, controversial cases of constitutional or other public law, is there still a home for you in Biglaw?
In this day and age, when a successful brand or company can get canceled seemingly overnight for a transgression it didn’t even realize was a transgression, large corporations are terrified of controversy—as are the Biglaw firms that serve them. Large firms have large client rosters, and large client rosters mean more clients out there who might be aggrieved by their outside law firm’s work for other clients.
Earlier this year, I profiled Cooper & Kirk, the high-powered conservative boutique. In explaining to me what led him to leave Biglaw and start his own firm, founder Chuck Cooper cited “freedom from the constraining forces you face at large law firms, like client conflicts and political influences.” This freedom allowed Cooper & Kirk to handle such matters as Bush v. Gore (the 2000 election), Hollingsworth v. Perry (gay marriage in California), former National Security Advisor John Bolton’s litigation with the Trump Administration over his bestselling memoir, and defense of the Duke lacrosse players falsely accused of sexual assault. I doubt these representations would have been possible at many Biglaw firms, which have followed their clients in aligning themselves with certain schools of progressive thought.
This brings us back to the case of Clement v. Kirkland. I agree with Kirkland’s defenders that lawyers and law firms are entitled to select their clients and cases, picking those that match up with their values and beliefs. If Kirkland & Ellis wanted to adopt a policy of not accepting Second Amendment cases going forward, that would be totally understandable (and as someone who’s not a huge fan of the Second Amendment, I might even support it). But according to Paul Clement and Erin Murphy, what went down at Kirkland & Ellis was different. Instead of being allowed to complete existing representations, they were given an ultimatum: “Withdraw from representing your clients, or withdraw from the firm.” And that, I submit, is harder to defend.
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Yes, I know the Supreme Court just decided Dobbs v. Jackson Women’s Health Organization, and I’m (frantically) working on a story. But since this post also concerns important news and was already drafted before Dobbs came down, I’m publishing it now.
A comment from a lifelong boutique lawyer:
"Are we beginning to reach a point where the full-service law firm model that fuses transactional and litigation departments is antiquated more generally, aside from high profile, hot-button issues? Are the synergies from that fused model really worth it—what advantage is there to a large corporate client having its litigation done by the same firm as its transactional work? I can imagine some efficiencies with respect to litigation arising from the deal work. But does (for example) a Big Pharma company benefit from having the same firm defend it in mass products liability actions as represents it in an M&A transaction? Given the increasing business, if not formal, conflicts of interest between the lit and transactional departments in Big Law, might we be on the verge of seeing an explosion in corporate defense-side lit boutiques?"
I wouldn't say that K&E doesn't want litigators, it just wants litigators that support its rain making practices. They backed up the money truck for Sandra Goldstein after all, but she's more likely to be found in Delaware Chancery arguing about an MAE than in federal appeals courts doing work for clients that wouldn't know an asset purchase agreement if one fell on their head. And that's probably as it should be, if you're a business firm do business work!