Law firms face new risks from public shaming of clients

By David Donovan
BridgeTower Media Newswires
 
Last October, a group of law students walked into the Manhattan office of Paul, Weiss, a large law firm, with a simple demand — that it drop ExxonMobil, one of the world’s largest emitters of carbon, as a client.

Organizers of the #DropExxon campaign presented a petition signed by hundreds of law students vowing never to work for the firm as long as it continued to defend the company.

Lawyers have always faced criticism for representing controversial or notorious clients, at least as far back as John Adams risking his livelihood to defend British soldiers before the American Revolution. But pressure campaigns urging law firms to withdraw from representing such clients have grown in frequency and sophistication in recent years, usually amplifying their message via social media. Besides #DropExxon, the law firms Jones Day and Porter Wright ended their involvement in Donald Trump’s efforts to overturn the 2020 election results in response to widespread criticism; other firms also dropped Trumps as clients.

So far, most of the attention has been directed at the country’s largest law firms, but it’s an issue that’s likely to force difficult decisions for an increasing number of firms in the coming years.

Law firms face two major worries. First, as the #DropExxon campaign exemplifies, such work can make attorney recruitment and retention more challenging; Jones Day reportedly faced substantial dissent within its own ranks over its election work. Second, some campaigns are targeting firms’ relationships with existing clients, some of whom may not want their brands tarnished by even a tenuous association with controversial causes.

Start with recruitment. Compared to earlier generations, today’s young lawyers are more likely to say that an employer’s values matter to them and that they want a job that provides fulfillment in addition to a salary.

“Young lawyers across the country are sensitized to those issues and are asking questions of potential employers. For the younger lawyers, they need to feel connected to the community that is their law firm, and if they can’t connect with the ideals of their law firm, then it’s not reasonable to think that they would see that firm as a long-term home for them,” said one partner at a firm in the Carolinas. (Given the sensitivity of the subject matter, all attorneys interviewed for this story were allowed to comment anonymously in order to speak candidly.)

Retention could be a bigger issue still if a potential client is divisive enough. Some attorneys drew an analogy to the era when Big Tobacco employed many firms in the Carolinas, an analogy that climate change activists are themselves quite keen on drawing. Firms might let conscientious objectors refrain from working on certain cases, but that only gets you so far. In some cases, firms may find themselves choosing between dropping a client and losing valuable attorneys.

Then there’s the risk of complicating relationships with existing clients, which activists know is another major vulnerability for firms.
The Lincoln Project, an anti-Trump group, targeted companies like General Motors, one of Jones Day’s clients, asking whether the company wanted to be associated with a firm if it was working to overturn an election result.

It’s a tactic that other types of activists are likely to adopt because it might prove to be their strongest lever.

Today’s companies are increasingly eager to show off their corporate social responsibility bona fides, and that could end up influencing their choices of counsel, which can serve as a useful way to signal those values to consumers. While some companies might prefer to avoid anything that could drag them into public controversy, others are proactively staking out positions on political issues, and might decide to make a change out of genuine antipathy to the sort of work firms are doing for other clients.

“In the past the impression I got at our firm was that when our management was considering taking on a matter that had potential political or controversy ramifications, they would ask how would our clients would view this, and then create a composite client through which to answer that question,” said a partner at a different law firm in the Carolinas. “And I used to joke that the composite client that they’re imagining is like the guy on the Monopoly set with the monocle.

“That was the client they were imagining. I think what people are coming to realize is that that’s not who our clients are.”

Attorneys who spoke to Lawyers Weekly were broadly in consensus that the issue hasn’t yet become a major issue for their firms, and that the legal marketplace was deep enough and diverse enough that even the most controversial clients should always be able to find competent counsel to represent them. But the issue is still more of a concern than it would have been 10 or 15 years ago, largely because of the platforms offered by social media.

So how should firms weigh such risks when deciding whether to take on a potentially problematic client?

It’s a question that defies any easy answers, especially when politics are increasingly polarized and more topics are considered political. And firms can catch flak from both sides and risk losing clients no matter what cases they take on — a third attorney said that a client promptly fired his firm after the client learned about the firm’s work advocating on behalf of pro-LGBTQ rights and causes.

“On the firm level, there are certain third rails you need to be careful of. I think the way firms have dealt with this in the past was by embracing one side of the aisle or the other,” the attorney said. “But I think that now, with some exceptions, I think what most law firms are trying to do is be a big tent where everyone feels welcome while also taking cases on both sides of the aisle.

“And I think that’s really, really tricky. I’ve struggled with that for the last several years.”

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