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In Times of Russian Conflict, What Should Big Law Say?

March 4, 2022, 5:20 PM

You can’t have your blini and eat it too.

That seems to be the lesson that Norton Rose Fulbright is learning with its recent effort to protect its Russian practice as President Vladamir Putin continues his relentless invasion of Ukraine. On Monday, multiple media outlets reported that the firm, which has a Moscow office, was banning its lawyers from commenting about sanctions against Russia.

At a time when Russia looms as the pariah of the world, and an increasing number of law firms are ditching their Russian clients (are they making a moral statement or doing so because they won’t get paid?), it was odd that Norton Rose made a directive to tell folks to zip it up.

The upshot: Norton Rose got slammed. Shearman & Sterling global managing partner George Casey minced no words on LinkedIn: “To my friends at Norton Rose Fullbright - are you serious?! In this defining moment for humanity, which side of history are you choosing?”

As if that public shaming wasn’t bad enough, Norton Rose’s chair of Canada, Walied Soliman, replied to Casey: “I want to be absolutely clear: we stand with the people of Ukraine. Period. I encourage all of our partners and colleagues to speak out.”

So how did the firm handle all this? Let me put it this way: Before there was light, there was much obfuscation. Though the firm ultimately changed course, issuing a grand statement on LinkedIn about standing with Ukraine and making it clear that lawyers are free to speak their minds, getting to that point was a bumpy ride. It’s a lesson on how not to navigate the turbulent waters of our times.

When the story first broke, my reaction was bafflement. (Query: Do lawyers forfeit their First Amendment rights when they join a law firm?) So I asked Norton Rose for clarification. Specifically, I asked for the text of what it said about commenting on Russia and Ukraine.

In response, the firm sent me this statement that left me scratching my head:

“Our sanctions team is advising clients across the world and, given the rapidly evolving situation, it is important that this advice is provided directly, through the appropriate channels. We therefore recently issued an internal notice relating specifically to external commentary on sanctions. We take client confidentiality extremely seriously, and it is standard practice for us to issue internal notices on any developing legal and regulatory issues, where clients may be directly or indirectly affected.”

This struck me as pure corporate gobbledygook because it totally dodged my original inquiry. I don’t think anyone is disputing that client advice should be delivered through “appropriate channels” or that client confidentiality should be taken “extremely seriously.”

Former Clifford Chance managing partner Tony Williams, however, views Norton Rose’s plight more sympathetically. “Being the leader of any organization during this staggeringly emotional time is very challenging,” says Williams, who had led Clifford Chance’s Moscow office in the 1990s. “They don’t want people to comment because they don’t want to send mixed messages, which is legitimate, though they were perhaps heavy handed. And perhaps inelegant.”

Heidi Li Friedman, a professor of law and philosophy at Georgetown University, is more critical. “They seem to be using client confidentiality to silence all speech,” says Friedman. “It’s not an attractive look for firms to restrict people that way. The question is whether it’s just clumsiness or if there’s a pattern of practice of discouraging political statements.” She adds, “firms should be saying, we encourage you to be civically involved as a lawyer.”

But do firms want lawyers to be active politically if it might jeopardize relations with clients? Let’s be specific: Are other firms involved in Russia matters prohibiting people from speaking out about the Ukraine situation?

For context, I asked seven firms with significant energy or Russian clients about their policies, and two of them—Baker Botts and Vinson & Elkins—confirmed that their lawyers are not restricted from expressing views. A source at White & Case also indicated the firm has no restrictions. Baker Botts, along with Paul Weiss, sent me statements that they are firmly supporting Ukraine. In addition, Vinson & Elkins sent me a statement saying that it has no Russian government affiliated clients or clients on the U.S. or European sanctions list. The firm adds that it’s looking into humanitarian work for Ukraine. As for other firms I contacted, they either didn’t respond or declined to comment.

While it’s understandable why some firms would rather stay under the radar at this time of uncertainty, Norton Rose seems to have gone over the line in trying to stifle speech. Did it really expect people to fall in line?

But Norton Rose’s spokesperson says the firm never had a policy that prevented people from expressing their views on Russia. After prodding, the firm later sent me the original internal communication that created the uproar. The relevant part reads: “Due to the sensitive nature of this topic [sanctions against Russia] and the major media interest, please refrain from providing any commentary, whether to the media, on social media channels, in social situations, in external presentations or any other channel.”

I leave it up to you to determine whether asking people to “refrain” from commenting “on social media channels, in social situations . . . or any other channel” creates a chilling effect on speech. Or if the firm was simply misunderstood.

What’s ironic is that Norton Rose ultimately had to take a public position on the Ukraine invasion—exactly what it was telling its own lawyers to avoid—to get out of its public relations pickle. Within 48 hours after the story broke about the speech “ban,” the firm issued a much clearer, more “elegant” statement:
“We are shocked by the tragic events unfolding in the Ukraine. Across our global firm, we are donating to humanitarian appeals to support the people of the Ukraine and we hope for a swift and peaceful resolution. As with many other law firms, it is standard practice for us to issue internal notices on any developing legal and regulatory issues covered by our practice, such as changes to sanctions. We’re clear that this does not in any way prevent members of the firm from voicing any views that they may hold on the wider Ukraine invasion and we fully support them doing so.”

It’s the right statement for this moment in history, though it appears that the firm was pressured into making it. In any case, it’s not the kind of declaration that will endear the firm to President Putin or his cronies. So be it.

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