Lewis Brisbois Email Scandal Is Instructive for General Counsel

Employment partners John Barber and Jeffrey Ranen left Lewis Brisbois in May to form their own firm, Barber Ranen, taking nearly 140 lawyers with them. Shortly after, an email leak showed that Lewis Brisbois got an “anonymous complaint” about the former attorneys, and an investigation that uncovered some of the worst emails I’ve seen from any workplace.

The two men had casually used language in dozens of emails that covered the waterfront of offensive—racist, sexist, and anti-LBGTQ+ slurs as well as antisemitic comments.

The fallout has put careers and brands in a tailspin and is a thought-provoking moment for general counsel as they think about risk. Obviously, this has wrecked the careers of Barber and Ranen, who have resigned from their new firm and must be contemplating how they can appear in front of judges or attract clients.

Their problems may just be beginning, with the potential of disciplinary proceedings with their respective bar associations or discrimination lawsuits.

Turmoil and Transparency

Their new firm (now rebranded Daugherty Lordan) has to be reeling—dozens of attorneys put their trust and careers in these lawyers when they left Lewis Brisbois and now face life in a new firm that’s without its two lead partners. Can the new firm now attract business from clients who might wonder how much these lawyers knew or why they would follow two men who behaved this way?

The investigation and outcome at Lewis Brisbois are interesting to track. The firm apparently found the emails in response to an anonymous complaint but then took the extraordinary step of intentionally publishing redacted versions of the offensive emails.

On one level, the decision to share these publicly was an act of transparency. But it might also be characterized as a costly act of revenge that backfired, with clients leaving the firm and turmoil within as leadership considers how no one spoke up.

It Could Happen Anywhere

It’s also an educational moment for general counsel everywhere who should always look for lessons from other companies’ mistakes. If a managing partner and head of the employment practice at a large national “woke” California firm has the audacity to send such emails, is it inconceivable that offensive emails could be written by anyone at any company?

Lewis Brisbois’ website proudly states that the firm’s lawyers “reflect the communities in which they live.” And if two employment lawyers showed such poor judgment to share their thoughts so casually in work emails, it’s not out of the question that such communication could exist in any company’s servers.

Preventive Steps

I think three steps are warranted in the wake of the Lewis Brisbois emails, all of which involve a close partnership with your company’s head of HR.

First, make sure your company talks openly about respect for people of all genders, religions, and backgrounds. Your company’s intranet, code of ethics, and general communications should send a steady drumbeat about the kind of workplace you want to be, how respect for others should permeate all that you do, and all that you write.

Remind everyone that emails, Slack channel messages, and other company communication methods are part of company records that can be pulled up and searched for purposes of lawsuits and investigations—these things are hard to delete. Make sure you’re proud of your messaging and wouldn’t be ashamed to see it reproduced online.

Second, talk to the rest of the leadership team about the Lewis Brisbois case. Share the story and some of the emails. Discuss how leaders set the tone about what’s acceptable to say and do at any company. Barber was a member of the firm’s national management committee, and Ranen the youngest partner in the firm’s history.

People notice and are deeply influenced by the actions of an organization’s most successful people. Remind leaders that they need to protect their own personal brand and the company’s culture and set the right tone, because it likely will be emulated.

Third, think about how you manage and store communications. Many companies have alerts that screen emails and other company-controlled communication channels for offensive words and language—such tools can help detect problems before they go too far.

Make smart decisions around email and document deletion. Companies that retain emails and documents for years without a specific purpose make it challenging and dangerous, when lawsuits and investigations crop up. If you do have to conduct an investigation into employee misconduct, keep a tight circle of those involved in reviewing communications, and think carefully about how you share your findings.

And lastly, remember there are a patchwork of state privacy laws that may restrict when and how far you can go in looking for problems. While company-controlled communication channels like email are generally fair game for searches, looking into texts, private social media pages, or other areas may be legally problematic. Check applicable law before you hunt for problems.

Offensive emails are a bad enough problem. How you find and respond to them can create an even bigger problem, so make sure you tread carefully.

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor.