Multiple white nationalist groups march with torches through the UVA campus in Charlottesville, Va., on Friday, Aug. 11, 2017. (Photo: Mykal McEldowney/The Indianapolis Star via AP)
Most lawyers agree that what happened in Charlottesville, Virginia, earlier this month was a tragedy, and many question President Donald Trump’s response to the marching of neo-Nazis and white supremacists and the death of protester Heather Heyer.
The world’s elite law firms have historically been extremely reluctant to take a public position on matters that don’t directly relate to their own businesses. The degree of caution and sensitivity is pretty well illustrated by the fact that, of the 13 international law firms I contacted for this column, almost half declined to even comment on whether firms should comment on such issues.
It’s a stark contrast to the wider corporate world, where CEOs routinely speak out about high-profile events and nobody bats an eyelid. Why should law firms be any different? Big Law is now big business in its own right. The market’s largest law firms are multibillion-dollar organizations with offices spread across the globe.
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The argument has always been that, as professional service businesses that are typically structured as partnerships, law firms have to consider the diverse opinions of their partners and clients. This is particularly true when it comes to politics: Most firms make a point of being apolitical and steer well clear of anything that has even the slightest political overtone.
It’s true that firms will likely have clients and partners who are technically owners of the on all sides of the political divide. But the same could be said of a corporation’s employees, customers and shareholders. There is also a pretty clear distinction between condemning the actions of a politician—or in the case of Charlottesville, Trump’s lack of action—and aligning your business behind a particular political party. These issues go beyond politics. (Credit, then, to Lowenstein Sandler chair Gary Wingens for having the guts to say in an open letter that there is no place for white supremacists “or leaders who do not unequivocally name them and call them out.”)
Still, law firms do have to carefully consider whether it is appropriate for them to take a formal stance on matters of broader public interest.
Take lesbian, gay, bisexual and transgender (LGBT) rights, for example. Law firms often espouse their commitment to equality, so they would be justified in wanting to openly challenge any discrimination or threats to what are, after all, fundamental human rights. But might LGBTQ civil rights organization the Human Rights Campaign or U.K. campaign group Stonewall be better placed to comment? And how do firms deal with events in such countries as the United Arab Emirates, where many international law firms have offices and where gay sex is illegal? Some Big Law firms even have a presence in Saudi Arabia, where homosexuality is punishable by death.
There is also the question of whether making a public statement about one tragedy or injustice sets a precedent that requires the firm to condemn all future tragedies and injustices.
Just three days after the Charlottesville attack, a car was again used as a weapon, this time in Spain, injuring 120 people and killing 16. Should international law firms have also denounced this act of terror? What about the atrocities that take place with depressing regularity in Syria and across the Middle East? Firms could be left issuing statements on a near-daily basis.
The alternative is arguably even less palatable. If a firm is going to be selective with its responses, it essentially needs to decide at what point something becomes awful enough to justify a public statement. Every time one of these terrible events occurs, firms are effectively forced to weigh the value of human rights and lives. That’s a nightmare of moral equivalency. I don’t envy law firm management teams and communications departments in having to make that call.
Indeed, it can be hard to remain objective when the issues are so highly emotive. It is therefore crucially important for law firms to have carefully drafted communications policies that help determine whether it is appropriate for them to comment in a given situation.
One approach might be to only do so when the issue in question is one that directly impacts the firm, its staff or its clients. A slightly broader option might be to also comment on events that take place in a city or country where the firm actively practices. (At the largest global law firms, that would still result in a catchment area that spans half the planet, however.)
If a London law firm were to make a statement on an event across the Atlantic that is completely unrelated to its business, for example, there is a danger that its comments, however earnest and well-intentioned, might come across as grandiose. To put it bluntly: Why should anyone care what a law firm in London thinks about something that happened to people thousands of miles away? Well, its staff might. And so might its clients. But does that require a public comment, or would it be better handled through internal communications?
In answering that question, firms should take into account the aforementioned policy, yes, but also the prevailing sentiment within their own business. It may be that the strength of feeling among staff on a particular event or issue is so strong that the firm is compelled to comment, even if doing so means it is technically going beyond the scope of its communications policy. Objectivity is important, but a degree of flexibility is necessary, too.
As if the decision wasn’t already complex enough, law firms also have to take into account the fact that lawyers have professional obligations to uphold the administration of justice and rule of law. It could be argued, therefore, that lawyers and their firms have an ethical responsibility to constructively challenge any threats to these principles and contribute to the public debate.
The law firms I spoke to certainly support this principle, but in practice, it’s not one that is universally or even widely adopted across the industry. Look at Trump’s controversial recent pardoning of former Arizona Sheriff Joe Arpaio, who was convicted of contempt of court for defying a judge’s orders to stop racially profiling Latinos. Sen. John McCain said Trump’s decision “undermines his claim for the respect of rule of law.” My colleague Jenna Greene wrote that it “could be the scariest thing that Trump has ever done.” That’s setting the bar pretty damn high, but as a legal reporter, it’s hard to disagree. Despite this, the country’s top law firms have, thus far, remained silent.
These are complex and highly sensitive questions, and there is no right answer. In each case, firms will have to come to their own conclusions as to what approach is right for them. But it is important to remember that being opposed to violence and inequality is the default position. The fact that a law firm thinks white supremacy is bad goes without saying. Firms that do want to comment on such matters should be sure they’re bringing more to the conversation than just moral outrage.
The Law Firm View:
“In difficult times, law firm leaders, like other business leaders, reaffirm their commitment to core values. For us, these core values include diversity, multiculturalism and inclusion. In using our voice, we also remind ourselves of our purpose. Lawyers and law firms have fought for justice and upheld the rule of law throughout their history, and they continue to do so today. I recently had the great honor of meeting the Dalai Lama, and when I asked him what advice he would give young lawyers, he gave me this instruction: “Protect the truth.” This is what we all must do.”
“It is imperative, particularly in light of the recent events in Charlottesville, Virginia, to speak out against bigotry, racism, prejudice, hateful rhetoric and discrimination of any kind. Law firms and legal professionals are in a unique position to leverage our collective obligation to uphold the law to help ensure the ethical treatment of all. The diversity of our team, and fostering an environment where people of all backgrounds belong, grow and succeed, is a cornerstone of our identity and critical to our continued success.”
“Baker McKenzie is not a political organization. Since our founding in 1949 we have been committed to principles and values of respect for the individual, a commitment to diversity and inclusion for all which has allowed us to flourish and grow across 47 countries as a truly inclusive firm which is guided in equal measure by our clients and our people. Our core purpose is to help our clients succeed in an increasingly volatile world and to serve our communities. We take steps either locally or globally to affirm our core purpose and values in the way we think, act and behave.”
“Lawyers have an unconditional and clear obligation to uphold the rule of law; that’s a fundamental part of being a lawyer. Violence and hatred are enemies of the rule of law. There’s no shadow of doubt in my mind that lawyers should speak out against that. In the U.K., we’re also seeing clear evidence of creeping intolerance, a lack of respect for the judiciary and the rule of law, and even more insidiously, a lack of respect for truth in public life. Those are things that we, as lawyers, ought to be deeply worried about.
“More tricky is when you get into politics. It’s not for law firms to start playing politics. Take Brexit as an issue. Many of us will have strong opinions about Brexit as individuals, but we decided not to adopt a public position as a firm. Law firms are diverse organizations: we have people within the firm and clients who fall on both sides of the political debate.
“There is a danger, however, that if you avoid anything even remotely political, you stop people from speaking out when they should. It needs to be handled sensitively.”
“We condemn the use of language and violence that diminishes the humanity of any part of our society. It has no place in a society founded on the principles of the rule of law and equality for all.”
“As I have visited some of our offices this week, I have felt the emotional pain that many of our staff and lawyers are experiencing in connection with the recent events in Charlottesville and the public discourse relating to them. For so many of us, the anger, hatred and intolerance that was on display cuts to our personal core—to our race, ethnicity, religion, sexual orientation and basic values. It is in this context that I am compelled to reaffirm Perkins Coie’s unyielding commitment to diversity, inclusion and equality. We not only embrace our broadly diverse backgrounds, we prize diversity as one of the firm’s greatest strengths. And, last, we remain bound to the long tradition among staff and lawyers at our firm to protect equality and justice in our communities and courts. We will continue to uphold this tradition; the events in Charlottesville tell us that we must.”