Law.com International tries to avoid being U.S.-centric, as we focus primarily on what’s going on in the legal world outside the U.S. But yesterday the U.S. celebrated Independence Day, commemorating the Declaration of Independence—a document that has become a moral standard and has inspired many subsequent similar declarations in other countries with the statement that “all men are created equal.” And given the news of the past week in the U.S., which has made headlines all over the world, it is impossible to put our main focus elsewhere. Even law firms, which do not operate in a bubble but are generally reluctant to embrace controversy, have responded and have been driven to act.
It was a trying week for Americans. The U.S. Supreme Court issued a decision that struck down a law regulating the public carrying of guns at a time when the country is still reeling from two recent mass shootings. It also blurred the line separating Church and State—a legal principle that, as the daughter of immigrants who fled religious persecution, I always saw as sacrosanct. Then, as most of the world is making moves to curb emissions and save the planet, the U.S. Supreme Court limited the power of the Environmental Protection Agency to combat climate change. On top of all that, Americans learned more about what transpired on January 6 in Washington, confirming that then-President Donald Trump was willing to stage a coup to remain President in a country that has forever defined itself as a nation built on the peaceful transition of power.
But above all, it was a trying week for many American women, especially for those, like me, who grew up at a time when the feminist movement, then often called the women’s liberation movement, was going strong and women seemed to finally be attaining the equal rights they were promised under the law. First, there was Title IX, a 1972 federal civil rights law that prohibited sex-based discrimination in any school that receives funding from the federal government—a law that has benefited girls and women for the past 50 years. Then in 1973, the U.S. Supreme Court ruled in Roe v Wade that the Constitution of the United States protects the right of a woman to choose whether to have an abortion—another decision that transformed American life for women for 50 years.
But as everyone now knows, at the end of June the Supreme Court reversed “Roe,” sending shockwaves through American society and across the world. The decision in Dobbs v. Jackson Women’s Health gives states the right to ban abortion. Putting aside personal views on abortion, from a legal standpoint the decision gave pause to those who believed that the U.S. legal system, and especially the U.S. Supreme Court, embraced the principle of stare decisis—respect for precedent. This is what many consider a cornerstone of the rule of law. But the Supreme Court, in a 6-3 decision, tossed half a century of precedent aside.
The number of conservative states in the U.S. banning abortion or planning to do so is now growing. In liberal states like New York, where I live, protests supporting a woman’s right to choose are large and frequent, and the state legislature is moving to enshrine that right in the state constitution. Justice Samuel Alito, who wrote the Dobbs decision, stated that it was time to reverse Roe because it had “enflamed debate and deepened division.” Given that polls show the majority of Americans believe in a woman’s right to choose, Dobbs, it seems, has deepened divisions even further.
Meanwhile, lawyers, who are often hesitant to state their views on controversial subjects, have found a collective voice. After the Court issued its ruling, about 450 women partners published a statement condemning the decision, noting that their “presence and leadership within the bar is without question a byproduct of the freedom each of us has had to make reproductive decisions for ourselves.”
Dobbs, they said, “is remarkable in its disdain for women’s lives,” and they called its disregard for a woman’s control of her body and the path of her life “both astounding and reprehensible.” The lawyers who signed the statement committed to offering their pro bono legal services to organizations that defend and support women’s rights “to autonomy, equality and safe access to reproductive care, including abortion.”
Since June 27, when the letter was first published, the number of women partners who have signed it has increased from the initial 450 to more than 2,000.
But it didn’t end there. On Friday, more than 1,000 male partners published their own letter, announcing that they are standing with their female colleagues—calling it not just a women’s issue but a human rights issue. “It is imperative that men speak up and stand up as reproductive justice affects us all,” they wrote.
It’s worth noting that not all of the letters’ signatories work at U.S.-based firms. They account for the majority, of course, but U.S. partners who work at non-U.S.-based firms such as Clifford Chance, Freshfields Bruckhaus Derringer, Allen & Overy, Hogan Lovells and Eversheds Sutherland, also signed the letters.
So, does this mean law firms are now finding it acceptable to take a stand on controversial subjects and to really embrace the statement of purpose they so often speak about to distinguish themselves from their competitors? Perhaps that’s going too far. After all, these were letters signed by individual partners—lawyers speaking for themselves and not on behalf of their firms.
Yet, some law firms are showing a spark of willingness to demonstrate that they stand for more than the mighty dollar, following the example of their clients in corporate America—Amazon, Apple, Disney, Tesla, Netflix, Starbucks , JPMorgan and others—which in the past week announced they will cover transportation costs for employees who have to travel to another state to obtain an abortion.
A growing list of firms, including McDermott, Will & Emery; Simpson Thacher & Bartlett; Morrison Foerster; Quinn Emanuel; and Mayer Brown, have said, either publicly or internally, that they will pay for travel and out-of-state costs for employees seeking abortions.
So it may be fair to say that while many of the world’s largest law firms may not be ready to openly state what they really think of Dobbs, actions speak louder than words.
And lawyers outside of the U.S.—in Europe, Africa, Latin America, Asia and elsewhere—also have reacted strongly to the decision. Law.com International’s staff reported how the decision’s reverberations are being felt around the world, prompting a global call to strengthen legal protections for reproductive rights, as well as heightened fears for the knock-on effects on civil rights, privacy rights and women’s health. They also explained how the U.S., in reversing Roe, is running counter to global trends toward more liberal abortion rights.
Abortion wasn’t the only legal decision that prompted repercussions in the legal industry. Just hours after Kirkland & Ellis appellate partners Paul Clement and Erin Murphy won a high-profile U.S. Supreme Court case in which they convinced the Court to strike down the state of New York’s century-old law regulating the public carrying of guns (so long, stare decisis), Kirkland announced it will no longer represent clients in matters related to the Constitution’s Second Amendment, which concerns the right to bear arms. Clement, a former solicitor general of the United States, and Murphy then announced they are leaving Kirkland and opening their own appellate boutique. And Clements immediately published an opinion piece in The Wall Street Journal in which he criticized Kirkland for “acceding to the demands of the woke.” Law firms, he wrote, aren’t supposed to operate like ordinary businesses, which drop clients or change suppliers whenever convenient. “Lawyers owe a duty of loyalty to their clients,” he said.
Is Clement right? Or have times changed to the point where reputational risk now plays a major role in law firm decisions about whom to represent? Is a law firm’s stated purpose of what kind of firm it is and what it believes in taking hold?
To be sure, Kirkland’s decision regarding gun representation came in the wake of a mass shooting at a Texas elementary school that killed 19 fourth-graders and two teachers. A week earlier, 10 people were killed and three injured during a shooting in a grocery store in Buffalo, New York. (On Independence Day, a mass shooting took place at an Independence Day parade, killing at least six people and wounding dozens more.) So reputation may have been part of it. After all, Kirkland knew when it hired Clement that he represented the National Rifle Association. And it knew when it hired him that he wouldn’t drop cases or causes because they posed a reputational risk. After all, he had left his previous firm, King & Spalding, over his work defending an anti-gay-marriage law.
So yes—Kirkland may have been concerned about its reputation, and its representation of the gun lobby was probably unpopular among partners and associates. But skeptics point out that Kirkland had little to lose by standing its ground and letting Clement leave. The firm makes the bulk of its $6 billion in revenue from private equity and restructuring. It doesn’t need a strong appellate practice. So much for the moral high ground. Still, it was a prudent move for the firm to stop representing the gun lobby. Maybe Kirkland is a little closer to finding purpose beyond profit.
And speaking of acting with a greater sense of purpose, after Russia invaded Ukraine in February of this year, international law firms bent over backward to denounce the war and say they were cutting ties with Russian clients. Baker McKenzie, which had operated in Russia for 33 years, was one, pledging in March to spin off its Moscow and St. Petersburg offices in the wake of the invasion. But last week, a Baker McKenzie partner presented under the firm’s name at a legal conference in St. Petersburg hosted by the Russian Ministry of Justice that featured a welcome message from Russian President Vladimir Putin.
This is reminiscent of a recent incident in which Davis Polk & Wardwell’s Asia head, Martin Rogers, announced on his LinkedIn profile that he would be speaking at an event that commemorates the second anniversary of the National Security Law in Hong Kong. But when word spread about his plan—one that could only be perceived as a controversial move at best—reputational risk once again reared its head. Davis Polk disavowed any previous knowledge that this was to take place and Rogers withdrew from the event.
Baker McKenzie has yet to comment on the participation of its partner in the Moscow conference or explain why it is still operating in Russia. Perhaps the firm’s intentions have not changed and disentangling its ties to Russia is more complicated than anticipated. But other firms have managed to spin off their Russian operations. As the reaction by law firms to the abortion decision has shown, actions speak louder than words.
So, after a weekend in which Americans marked a holiday celebrating themselves as a nation, it’s a good time for companies, individuals, and yes—law firms—to reflect on who they want to be. The principles of the Declaration of Independence—that all people are equal and endowed “with certain unalienable rights, that among these are life, liberty and the pursuit of happiness”—have inspired much of the world.
Following the U.S. Supreme Court’s abortion decision, for example, the president of Mexico’s Supreme Court, Arturo Zaldívar, who was openly critical of the decision, tweeted a statement that strongly reflects the ideals expressed in the words contained in that historic American document. He wrote: “All the rights for all the people. Until equality and dignity become the custom.”
Let’s hope we can live up to that.
