By Michael Nam
As high profile anti-discrimination cases dominate the media, the legal industry is showing that lawyers can indeed make moral choices beyond the need for representing paying clients. Big law firms are drawing the line in the sand on the issue of same-gender marriage and LGBT issues.
John Bursch, former Michigan Solicitor General, will be presenting the case against marriage equality at the Supreme Court. When he joined Warner Norcross as a partner, the law firm declined to take part in the litigation. However, according tothe National Law Journal, “that’s in contrast with same-sex marriage appellate advocates, who, within their large firms, take pride in working on cases pro bono.”
What drives this particular stance on a high-profile issue, like marriage equality, in an industry that typically represents most any “controversial” issue According toTheNew York Times, law firms and professors point to the practical consideration of losing clients and law recruits.
“Firms are trying to recruit the best talent from the best law schools,” saidDale Carpenter, a law professor at the University of Minnesota, to TheNew York Times, “and the overwhelming majority of them want to work in a community of respect and diversity.”
The business case seems easily demonstrable as companies onThe DiversityInc Top 50 Companies for Diversitylist, such asEli Lilly and Company,Anthem (formerly WellPoint),CumminsandMonsanto,all took stands against the discriminatory nature of the initial version of theIndiana Religious Freedom Restoration Act.
“We want our employees and customers, no matter what state they live in, to know that they are valued,” Monsanto CEO Hugh Grant saidin a press release.
The perceived toxicity of representing discriminatory legal positions seems to be growing and it’s propelled by clients stating their values. In 2011, King and Spalding backed out of representing the U.S. government on behalf of the Defense of Marriage Act despite this resulting in the public resignation of one of the firm’s partners.Talking Points Memopointed out that Coca Cola put client pressure on the law firm to withdraw, public outcry and LGBT activist lobbying undoubtedly made an impact.
Lawyers also take stands on issues of race.Eight law firms allegedly declined to representformer Los Angeles Clippers owner Donald Sterling due to revelations of his racist behavior. More recently, the lawyer representing Michael Slager, the South Carolina police officer charged with the murder of Walter Scott, withdrew from the case after viewing the shocking video of the shooting incident.
“I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer,” said attorney David Aylorto the Daily Beast. “All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can’t confirm from an attorney-client standpoint what the reason is.”
FindLaw notes thatbad publicitywould be enough for lawyers to avoid a client, but lawyers still maintain the right to turn away a case due to their own ethical concerns.
“As attorneys, we do not give up our personal moral standards when we become members of the bar,” writes Scott D. Laufenberg of theAmerican Bar Association. “Attorneys who are personally repulsed by the beliefs and actions of white supremacists should not be forced to represent them. Further, although the lawyer does not implicitly or explicitly endorse the client’s actions or beliefs by establishing a defense, that representation can unfortunately become a conduit for promoting those very beliefs. Ideally, attorneys would not let the moral or ethical status of a client’s actions or position impair their ability to be effective advocates; unfortunately, this is not always possible in the real world.”