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Davis Polk Talks Out of Both Sides of Its Mouth on Human Rights

May 27, 2022, 2:36 PM

This must have been awkward for Davis Polk & Wardwell. Last week, Martin Rogers, head of the firm’s Asia practice, proudly announced that he’d be speaking at the “National Security Law Legal Forum—Thrive with Security” event sponsored by Hong Kong’s justice department and the Asian Academy of International Law.

Nothing unusual about a leading legal practitioner delivering a wonky talk at a gathering of government officials and academics. Except for this inconvenient fact: The event celebrates the two-year anniversary of a law designed to obliterate Hong Kong’s pro-democracy movement—which it has achieved spectacularly. Since its enactment by China in 2020, more than 170 people have been arrested, including, most recently, Cardinal Joseph Zen, 90, the former Catholic bishop of Hong Kong.

Facing harsh criticism on social media and the press, Rogers withdrew from the conference, issuing a statement on LinkedIn that reads in part: “My agreement to participate did not reflect an endorsement or support of any topics discussed or individuals or organizations involved.”

Problem nipped in the bud, right? Hardly.

At a time when law firms and companies are distancing themselves from Russia and making bold statements about standing up for human rights, Davis Polk aligned itself with a law that’s become synonymous with oppression. The firm not only lent its good name to an event that smacks of state-sponsored propaganda but it promoted the celebration. As Law.com reports, “the event was marketed on the Davis Polk’s website, but the page has now been removed.”

And despite Rogers’ statement that his planned participation was not an “endorsement” of any particular topic or organization, he has a track record of supporting both the letter and the spirit of the security law. In a cringeworthy video, Rogers lavishes praise on the oppressive measure, sounding like a tool of the Chinese government.

And there’s more. Rogers lashed out at the press for criticizing China’s crackdown on dissenters in 2019, before the law went into effect. “It is distressing to me that the media hasn’t been particularly balanced,” Rogers said at the time. He also “argued that ‘appropriate prosecutions’ are key to ending the demonstrations,” reported The Law Society Gazette. “If we get prosecutions going for sheer unadulterated violence, if 500 or 1,000 people go to jail for that, it will take the wind out of the violence,” he is quoted as saying.

Let that sink in: The top partner in Asia of one of the most esteemed law firms in the world proposed locking up 500 to 1,000 pro-democracy protesters to maintain law and order. Chilling.

Neither Rogers nor Davis Polk has responded to my request for comment.

‘Shameless Endorsement’

I understand that American law firms in China have to make nice with the government to keep the business machinery humming. But was it really necessary for Rogers—and by extension, Davis Polk—to be apologists for a government that brutalizes its own people?

Davis Polk is hardly the first or the last to kowtow to China. Mayer Brown took a similar approach when it got involved in demanding that a monument commemorating the Tiananmen Square massacre be removed from the University of Hong Kong. At the time, I asked, “why would a top firm want to associate itself with crushing a symbol of freedom?” To me, the reputational risk wasn’t worth the price.

“What happened here is worse than the Mayer Brown situation,” said Martin Flaherty, co-director of the Leitner Center for International Law and Justice at Fordham Law School and a visiting professor at Princeton University. “You can argue that Mayer Brown was representing a client. But here, Rogers is endorsing a law without referencing the interests of specific clients.” Flaherty called it “the most shameless endorsement by a person affiliated with a major American firm, especially one as prestigious as Davis Polk.”

Arguably one of the most white-shoe of white-shoe firms, Davis Polk has always projected an enviable image in the legal industry that it stands for something loftier than just making money—though it does fine in that department too (its profit per partner is $7.1 million, according to The American Lawyer). And part of that image is doing good work on behalf of the less fortunate or those seeking refuge from authoritarian regimes.

Indeed, Davis Polk touts its extensive pro bono work, including awards it has won in that space. Among them is a 2021 award from Human Rights First for its work on behalf of asylum seekers in the U.S. In 2020, the Law Society of Hong Kong recognized the firm for taking on “a range of important and impactful projects, including appellate and first-instance work with refugees, advocacy for the LGBTI+ community, and providing advice to social enterprises and charities.”

Comfort and Aid

Davis Polk also doles out pro bono awards to its own lawyers—and here’s where it gets really interesting. In October, it honored its “Hong Kong non-refoulement matters team” for work on behalf of African refugees seeking safe haven in Hong Kong. And who’s the first name cited for recognition? Rogers.

Also ironic is that central to non-refoulement policy is that asylum seekers won’t be returned to the country from which they’re escaping—unlike Hong Kong’s security law that’s been used to extradite dissenters to mainland China where they will likely face harsher punishment.

No doubt, Davis Polk has done significant pro bono that’s worthy of praise. But it’s jarring that while it promotes human rights on one hand, one of its most prominent partners is giving comfort and aid to authoritarian rule. And I don’t buy the argument that Rogers is just a lone actor that the firm can’t or shouldn’t control. He is the head of its Asia offices, and when he makes public pronouncements, he speaks with the imprimatur of that office.

“He should be an embarrassment to the firm,” said Flaherty. “If the firm wants to uphold the highest standards of the legal profession, someone should sit him down and tell him why it’s unacceptable. And if the problem persists, and they continue to do business in China in ways that facilitate authoritarian measures, we’ll know talk is cheap.”

In other words, Davis Polk will be just another money-grubbing firm—something that should strike a blow to its ego.

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com