Yesterday, the Boston Globe published a piece by Above the Law alum David Lat lamenting “cancel culture” and advancing the claim: “Simply put, Big Law… is currently seized by ideological intolerance and groupthink.”
Simply put, it is not.
That said, the piece succeeds — perhaps unintentionally — as an exploration of “cancel culture” as a touchstone of modern American life. As a pithy, alliterative slogan, “cancel culture” always tickles a search engine, but it also offers people a comforting and quotable deflection from the terror of confronting their own accountability. Lost a job, a friend, a family member… it’s not you, it’s them. Them and their pesky “cancel culture.”
And Lat’s article cites some of these maligned and silenced cancel culture victims — who were coincidentally offered space in the Wall Street Journal to publish their stories — to back up his central thesis. Yet, upon further review, the narratives he’s relying on elide critical details, as one might expect from self-serving accounts, undermining the vast left-wing conspiracy out to get these whiny attorneys. The Lat article opens by recounting Paul Clement and Erin Murphy leaving Kirkland & Ellis in the immediate aftermath of winning the Bruen case:
You might have expected the lawyers who won the case, celebrated Supreme Court litigators Paul Clement and Erin Murphy, to receive congratulations within their firm for such a major victory.
Instead, they received walking papers. That afternoon, Clement and Murphy announced in The Wall Street Journal that they were leaving Kirkland & Ellis, the nation’s highest-grossing law firm. Why? Because Kirkland presented them with an ultimatum: withdraw from representing clients in Second Amendment cases, including existing clients in ongoing representations, or withdraw from the firm.
This rests on the shaky assumption that a multibillion-dollar business should prefer winning one Supreme Court case to, you know, making multiple billions of dollars.
Clement and Murphy worked hard to secure a very public Supreme Court victory. In the process, Clement and Murphy tied the firm’s name to a deluge of press coverage about the helping hand Kirkland offered to the next spate of school shooters. While this likely didn’t sit well with all of Kirkland’s partners, it also wasn’t going to sit well with Kirkland’s current and future clients. Somehow the role that clients might play in a service industry didn’t make it into this version of the story.
Because there was an ultimatum involved here: risk millions upon millions in future deals or ditch a high (though negative) publicity passion project?
As one might imagine, Kirkland & Ellis chose the money.
Just like King & Spalding chose the money when Clement left there in a huff after that firm realized its client base wasn’t psyched to be working with the firm fighting against marriage equality in 21st century.
It’s not just representing unpopular clients; even articulating an unpopular opinion might be a fireable offense today in the world of large law firms (aka “Big Law”). Take support for the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and sent abortion back to the states. At least two antiabortion women partners allege — one in The Wall Street Journal and one in Original Jurisdiction, my newsletter about the legal profession — that their support for Dobbs played a major role in their being forced out of their firms.
This glosses over a bit. Hogan Lovells parted ways with Robin Keller after she started hammering the racist “Black genocide” trope, recasting abortion as the “fault” of Black women. Which is, you know, a bit more of a hostile workplace problem than a “support for Dobbs” problem.
Before closing out, Yale earns an aside:
This fall, Yale Law School, which had significant problems last year relating to free speech, redesigned its orientation for new students “to center around discussions of free expression and the importance of respectful engagement.” Perhaps law firms should follow suit.
Except… it didn’t. Popular right-wing accounts breathlessly claimed Yale Law students “shouted down” a speaker and bemoaned the death of free speech on campus. Federal judges cynically seized on it to boost their own sagging profiles. Yet, after the first two disruptions — provided for by then-existing rules to avoid silencing the speech rights of dissenters — the event ultimately continued as scheduled.
But back to the law firm world…
As the majority within Big Law, left-leaning lawyers might be perfectly happy to enjoy dominating their workplaces. But they should keep in mind that beyond Big Law, a “majority rules” approach to free speech can lead to terrible outcomes, including bans on everything from teaching critical race theory to the novels of Toni Morrison.
The conservatives behind these bans share the same reasoning as progressives in Big Law: If something offends us, it must be cast out.
How would you like some apples with those oranges? The First Amendment only applies to government and not private interference — which Lat acknowledges elsewhere in the article — but “cancel culture” discourse consistently ignores that this is a feature and not a bug. One the most compelling justifications for protecting speech from government action is that it keeps the state from tilting the scales as democratic societies grapple with ideas. But for this process to work, private actors being able to cast out bad ideas is just as important as keeping the government out of the process. Imposing a moral duty on private actors to passively accept every opinion they encounter collapses this free marketplace of ideas.
So, no, the idea that a company cannot fire someone making racist remarks or else they’re just as bad as the state of Florida going “don’t say gay” does not track.
But this passage is also where all those omissions from the earlier examples add up. What happened to these lawyers is not about a shadowy cabal of leftists “dominating their workplaces,” it’s about making money. Clement and Murphy did not fit into Kirkland’s business strategy. That a former solicitor general opened his own firm rather than find another welcoming Biglaw home is a pretty good indication that no one else wanted to touch his client-repelling advocacy either. Robin Keller didn’t support Dobbs, she made racist remarks that jeopardized the firm’s relationship with its talent and — not for nothing — raised concerns that she might alienate clients with more loose cannon behavior.
Here’s the thing: none of these folks became fire-breathing conservatives overnight. For years, Biglaw firms smiled and nodded as these lawyers went about their business.
Then these folks each got between a firm and its money.
Because the Am Law 100 is seized by groupthink and that groupthink is “we need to keep making enough money to stay in the Am Law 100.”
Big Law’s cancel culture [Boston Globe]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.