Yesterday, the Boston Globe published an article by David Lat, an Above the Law alum, lamenting “cancellation culture” and making the following claim: “Put simply, Big Law…is currently seized by the ideological intolerance and groupthink.
In other words, it is not.
That said, the play succeeds – perhaps unwittingly – as an exploration of “cancel culture” as a touchstone of modern American life. As a pithy, alliterative tagline, “cancel culture” always tickles a search engine, but it also offers people a heartwarming, quotable diversion from the terror of facing their own responsibility. You’ve lost a job, a friend, a family member…it’s not you, it’s their. Them and their pesky “cancel culture”.
And Lat’s article cites some of those maligned and silenced victims of cancel culture — who were coincidentally offered space in the Wall Street Journal to publish their stories — to support its central thesis. Yet upon closer examination, the accounts he relies on eliminate critical detail, as one would expect from self-serving accounts, undermining the left’s vast conspiracy to get those whiny lawyers. The Lat article opens by recounting Paul Clement and Erin Murphy leaving Kirkland & Ellis just after winning the Brown Case:
One might have expected the attorneys who won the case, famed Supreme Court litigants Paul Clement and Erin Murphy, to receive congratulations within their firm for such a significant win.
Instead, they received marching papers. That afternoon, Clement and Murphy announced in The Wall Street Journal that they were leaving Kirkland & Ellis, the nation’s most profitable law firm. Why? Because Kirkland presented them with an ultimatum: Get out of representing clients in Second Amendment cases, including existing clients in pending representations, or get out of business.
It’s based on the flimsy assumption that a multi-billion dollar company would rather win a Supreme Court case than, you know, win multi-billion dollars.
Clement and Murphy worked hard to secure a very public Supreme Court victory. In the process, Clement and Murphy tied the company’s name to a deluge of media coverage about the helping hand Kirkland offered the next wave of school shooters. While this probably wouldn’t sit well with all of Kirkland’s partners, it wasn’t going to sit well with current and future Kirkland customers either. Somehow, the role that customers might play in a service industry has not been considered in this version of the story.
Because there was an ultimatum at stake here: risk millions upon millions in future deals or abandon a lofty (albeit negative) publicity passion project?
As one can imagine, Kirkland & Ellis chose silver.
Just as King & Spalding chose silver when Clement left there angry after that company realized their customer base wasn’t enthusiastic about working with the company fighting marriage equality in the 21st century.
It’s not just about representing unpopular clients; even articulating an unpopular opinion could be a dismissable offense today in the world of big law firms (aka “Big Law”). Supports the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned abortion to the United States. At least two anti-abortion female partners claim — one in the Wall Street Journal and one in Original Jurisdiction, my legal profession newsletter — that their support for Dobbs played a major role in their ouster from their firm.
It goes a bit under wraps. Hogan Lovells split from Robin Keller after she began hammering the racist trope of “black genocide,” recasting abortion as the “fault” of black women. Which is, you know, a bit more of a hostile workplace issue than “support for Dobbs” problem.
Before concluding, Yale earns an aside:
This fall, Yale Law School, which faced significant free-speech issues last year, revamped its orientation for new students “to focus on free-speech discussions.” and the importance of respectful engagement”. Perhaps law firms should follow suit.
Except… it wasn’t. Popular right-wing accounts breathlessly claimed that Yale law students “screamed” a speaker and lamented the death of free speech on campus. Federal judges have cynically used it to bolster their own sagging profiles. Yet after the first two disruptions – prescribed by rules then in place to avoid silencing the free-speech rights of dissenters – the event eventually went ahead as planned.
But back to the world of law firms…
As the majority within Big Law, leftist lawyers might be perfectly happy dominating their workplaces. But they must keep in mind that beyond Big Law, a “majority rules” approach to free speech can lead to dire results, including the banning of everything from teaching critical race theory to the novels of Toni Morrison.
The conservatives behind these bans share the same reasoning as the Big Law progressives: if something offends us, we should kick it out.
Would you like apples with those oranges? The First Amendment applies only to governmental, not private interference – something Lat acknowledges elsewhere in the article – but the “cancel culture” discourse consistently ignores that it is a feature and not of a bug. One of the most compelling justifications for protecting speech from government action is that it prevents the state from tipping the scales as democratic societies grapple with ideas. But for this process to work, it is just as important that private actors can chase away bad ideas as it is to keep government out of the process. Imposing a moral obligation on private actors to passively accept every opinion they encounter collapses this free market of ideas.
So, no, the idea that a company can’t fire someone who makes racist remarks or they’re just as bad as the state of Florida saying don’t say gay doesn’t hold up.
But this passage is also where all those omissions from the previous examples add up. What happened to these lawyers was not a shadowy cabal of leftists “dominating their workplaces”, it was about making money. Clement and Murphy did not fit Kirkland’s business strategy. The fact that a former Solicitor General opened his own firm rather than find another welcoming Biglaw home is a pretty good indication that no one else wanted to touch his repulsive client advocacy either. Robin Keller did not support Dobbsshe made racist remarks that jeopardized the company’s relationship with her talent and – not for nothing – raised concerns that she was alienating clients with more cowardly cannon behavior.
Here’s the thing: None of these people became fire-breathing conservatives overnight. For years, Biglaw firms have smiled and nodded as these lawyers went about their business.
Then these people each came between a company and its money.
Because the Am Law 100 is gripped by groupthink and that groupthink is “we need to keep making enough money to stay in the Am Law 100”.
Big Law’s cancel culture [Boston Globe]
Earlier: Paul Clement laments the cancellation of Kirkland culture… or “capitalism” as the case may be
White Biglaw Lawyer Spreads ‘Inappropriate and Offensive’ Abortion Theories and Is Suspended
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email tips, questions or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe is also Managing Director at RPN Executive Search.