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ANALYSIS: Three Decisions Law Firms Will Have to Make Post-Dobbs

Aug. 18, 2022, 9:00 AM

The implications of the US Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization are rippling through the legal landscape—putting significant pressure on one key player: law firms.

While many firms have already released public statements regarding where they stand on the issue of reproductive rights, the more pressing question is: What happens next?

As states continue to pass abortion-related legislation and the debate unfolds, law firms will have to make three major decisions: First—whether to stay in states where legislation is under way to ban abortions or make it more accessible; second—whether to keep clients whose views on the issue are untenable with those of the firm; and third—what cases the firm should get involved in on the topic.

1. Should Firms Keep Offices in Certain States?

More than three-fourths of Am Law 100 firms have offices in states that have either banned or severely limited abortions, and firms that choose to provide assistance to their employees in this area could face criminal liability for doing so. The question for law firms now becomes: stay or go?

This scenario is starting to play out in Texas—a huge legal hub and home to some of the world’s largest law firms. In recent years, many of Big Law’s top players have expanded their presence in the Lone Star State, opening offices in multiple cities in part because of its strong client base. But now that the state is passing some of the strictest laws on abortion, many firms are left struggling to figure out their next moves.

Despite these new laws, many firms, including Vinson & Elkins—a firm that was founded in Houston and has a large presence throughout Texas—have chosen to remain steadfast in providing their employees with abortion assistance and expanding reproductive health care benefits.

But in a state like Texas, the firm could end up paying a price for these actions. Sidley Austin announced plans to reimburse travel expenses for employees seeking abortions out of state, and is now being targeted by Texas state legislators, who are threatening the firm with criminal prosecution and disbarment.

Sidley is likely to be the first of many to face such threats and legal consequences as firms continue to declare that they will provide such benefits in states where it’s illegal to do so.

While no firm has yet announced plans to close offices in states where abortion is being outlawed, the example of Eli Lilly serves as a model for what firms might do next. The Indiana-based pharmaceutical company is one of the largest employers in the state, but the company announced earlier this month that it “will be forced to plan for more employment growth outside our home state” following the passage of Indiana’s new legislation banning abortions.

2. Will Law Firms Part Ways With Clients?

Just as law firms are deciding where they stand on the abortion debate, many of their clients are as well. If a client’s position is untenable for firm leadership—and possibly to other firm clients—we might see firms parting ways with some of their clients.

The example of former Kirkland & Ellis litigator Paul Clement shows how a situation of this nature might unfold. In June, on the heels of Clement’s huge win at the US Supreme Court on behalf of a National Rifle Association affiliate, Kirkland announced it would no longer represent clients—including the NRA—on Second Amendment issues.

As a result, Clement, along with former Kirkland partner Erin Murphy, left Kirkland to start their own firm—bringing the NRA with them.

Gun rights—similar to abortion—is a highly controversial and polarizing topic. Kirkland’s decision to part ways with the NRA was allegedly fueled in part by the firm’s other clients, who were unhappy with the firm representing the group.

There will likely be similar fallout in the months to come over abortion-related decisions that firms will make. Once a firm decides that it can’t continue to represent certain clients, some of the attorneys working closely with those clients may decide to follow them to another firm.

The abortion debate could affect a firm’s ability to retain and attract employees, an issue law firms have been dealing with during the Great Resignation, which has seen a significant amount of attorneys switching firms. And the abortion debate—if not handled appropriately—gives attorneys another reason to leave.

3. What Cases Should Firms Take On?

Much like the decision about what clients to keep, firms will likely have to make decisions regarding what cases to accept.

A number of law firms have pledged to provide free, pro bono legal representation to women seeking abortions and any parties, such as medical professionals, that are choosing to assist. Firms with pro bono practices in this area are likely to see a surge of needs and those involved should prepare accordingly. Some firms have also announced that they will cover any legal defense expenses that may arise from lawsuits surrounding these issues.

Other firms have chosen to remain neutral or silent. Holland and Knight recently announced that it wants to remain apolitical when it comes to taking a stance on abortion rights and other social issues, encouraging employees to focus only as their jobs as lawyers, instead of the politics that may be involved.

In addition to the Dobbs-adjacent work that firms may or may not be involved in, there’s likely to be a flood of litigation over the validity of state laws barring abortions. Questions about the enforcement of these laws as well as the reach of fetal rights laws are already coming into play.

Firms must be prepared to make major decisions surrounding these three issues in the coming months. Whether that be closing an office, dropping a client, or taking on a specific case, firms need to proactively decide on the best approach and thoughtfully communicate it to employees and clients.

In related pieces, Abigail Gampher’s Aug. 17 article examines what employee benefit inquiries corporations should expect from shareholders, and Francis Boustany’s Aug. 19 article covers the labor and employment implications of Dobbs.

Bloomberg Law subscribers can find related content on our In Focus: Abortion Law, Legal Operations, and In Focus: Lawyer Development resources.

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