Paul L. Caron

Thursday, February 2, 2023

Lat: Big Law’s Cancel Culture

The Boston Globe Op-Ed:  Big Law’s Cancel Culture, by David Lat:

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.

On the morning of June 23, the US 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.

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. ...

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. ...

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. ...

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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