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Culture Wars Catch Big Law Firms Balancing Client, Staff Demands

Jan. 20, 2023, 10:30 AM

When the Supreme Court overturned abortion rights last year, Cozen O’Connor’s executive chairman quickly dashed off an email to everyone at the law firm.

Cozen would do everything necessary to ensure people get healthcare, Michael Heller told them. And the firm would pay for it—wherever people had to go to get it.

“I had a lot of partners send me emails that said thank you,” Heller said in an interview. “I had a lot of partners that sent me emails that said that’s inappropriate.”

Big Law leaders increasingly find themselves enmeshed in politics, as the talent and clients they compete for drive them to confront how their values align with hot-button issues of the day.

The issue might be guns: Kirkland & Ellis quit working on Second Amendment cases after superstar advocate Paul Clement won a Supreme Court gun rights case, prompting him to leave the firm.

Or race: Dorsey & Whitney ended its prosecution assistance program with the Minneapolis City Attorney’s office in 2020 following George Floyd’s murder.

Or politics: Firms including Hogan Lovells and Holland & Knight temporarily halted political action committee donations to Congress members after the US Capitol riot.

Or ESG: Five Republican senators told 50 law firms last year they should tell clients about the risk of “participating in climate cartels and other ill-advised” environment, social and governance schemes.

Businesses face unprecedented pressure to be progressive forces for social change; they are turning to their suppliers, including law firms, to push the same values, said David Wilkins, director of Harvard Law School’s Center on the Legal Profession.

Law firms respond by taking positions, thus building expectations to do even more, Wilkins said. “People said, well, you spoke out for Black Lives Matter and against the murder of George Floyd, what about Asian hate? Or what about Roe v. Wade?” he said.

Cozen was among several firms that quickly vowed to pay abortion travel expenses after the Supreme Court decision, joining McDermott Will & Emery; Morgan Lewis & Bockius; Morrison & Foerster; Ropes & Gray; and Vinson & Elkins.

“We did what we thought was right,” Heller said. Still, the question of how politics affects operations is “one of the hardest issues that law firm leaders, probably business leaders in general, are facing today.”

Taking a Stand

Big Law firms can’t afford to ignore changing values among corporations because clients are free to drop legal counsel any time, said James Jones, senior fellow at Georgetown University Law Center. Nor can they neglect their talent, which can flee to rival firms, he said.

“You have to be much more sensitive to these kinds of concerns than other kinds of businesses,” said Jones, director of the Trends in Law Practice program.

Lucantonio Salvi, chair of Sheppard Mullin’s executive committee, said communications with clients on issues such as diversity, equity and inclusion are vital.

“We’re always engaging with our clients about what they’re doing, what we’re doing, and how we can both do it together better,” Salvi said.

After the murder of George Floyd, major law firms denounced racial inequality through open statements and pledged to push for change in the wake of protests across the country.

Greenberg Traurig announced in the summer of 2020 that it’d be committing $5 million over the next five years to support causes that address systemic racism as part of its Social, Racial, and Economic Justice Action Plan.

Firms a year after Floyd’s death added programs around Juneteenth, which commemorates the effective end of slavery in the US. Littler Mendelson in early 2021 named its first chief inclusion, equity and diversity officer.

Women and people of color made “measured progress’’ at major law firms in 2022, according to a National Association for Law Placement report this month. Women make up nearly half of all associates and Black lawyers saw the biggest gains by race and ethnicity, with associate representation rising a half percentage point to 5.77%, NALP said.

The gradual diversification has ushered in “a different kind of conversation” in internal Big Law firm culture, said Phillip Inglima, chair of Crowell & Moring’s management board. Crowell and other firms host internal discussions among their lawyers about racial justice, reproductive rights, and other social issues, he said.

“There was a sense that,” Inglima said, “that was either not the responsibility or the appropriate use of the the firm community’s time” 20 years ago, when firms were less diverse along race, gender, and sexuality.

No Choice

Many law firms would prefer not to be faced with enacting policies responsive to political and social issues, Jones said. But in some cases, such as a Texas law in 2021 that prohibits abortions during as early as six weeks of pregnancy, firms felt they had no choice, he said.

“States are forcing them to take a position on these issues by passing these laws,” he said. “Most of these firms would rather not have the issue at all.”

After the Supreme Court overturned Roe v. Wade and wiped out the constitutional right to abortion, at least a quarter of the country’s 100 largest law firms said they’d cover reproductive health travel costs for employees in states where new abortion restrictions are going into effect.

Though Big Law firms have increasingly spoken out, the main clients and interests they represent aren’t progressive and in some cases are adverse to the public’s interests, Wilkins said.

“This idea that Big Law firms have become these cradles of progressive action is just a caricature,” he said. “What large law firms do is mostly represent the status quo, and the status quo is not a hotbed of progressive action and ideals.”

Still, firms won’t hesitate to wade into politics when they see the need. Cozen last year ended a two-year sponsorship with professional golfer Jason Kokrak after he jumped to a breakaway circuit LIV Golf funded by the Saudi Arabia Public Investment Fund.

Some critics have faulted the new league as a move to “sportswash” Saudi Arabia’s reputation. The law firm and its chairman, Stephen Cozen, have played a leading role in a lawsuit against Saudi Arabia filed by 9/11 victims and families in 2003.

“There are people on both sides of every issue—whether it’s gun control, abortion, Saudi Arabia,” Heller, the Cozen executive chairman, said. “You’re never going to be able to please everybody.”

The firm needs to balance the constitutional right to representation and the need “to look ourselves in the mirror,” he said. “We err on the side of trying to do what we think is right.”

To contact the reporter on this story: Tiana Headley in Washington at theadley@bloombergindustry.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes at jhughes@bloombergindustry.com