Why Finding Lawyers That Match Your Values Is So Hard
Only when you know what matters to you will you be able to look out and see if your values are reflected in the individual lawyers and law firms you are considering working with.
Last week, Sean wrote about the importance of values and ethics of the law firms providing services for corporate counsel, noting that, “97% percent of corporate counsel leaders told us they would take action if they discovered a law firm they were working with did not meet their ethical or values criteria.”
This brings up interesting questions about what it means to meet ethical or values criteria. While there will be certain extreme scenarios, such as attorney malpractice, lying about experiences, or other generally accepted criteria where it is clear that ethics or values have been violated, in most scenarios knowing whether a firm meets a company’s values is going to be much trickier.
Does it mean alignment with your company’s environmental, social, and governance goals? Does it mean public statements supporting causes that your company cares about? Is it based on their areas of expertise or the industries they are experienced in? None of these? All of these?
While there is no easy answer to this question, we try to provide a fairly comprehensive framework to this and other value-related questions in an article we published, “The rise of the ethically empowered corporate legal team,” in the most recent edition of Modern Lawyer. Spoiler alert: If you don’t first know what you value, you are going to have a hell of a time trying to find lawyers and firms that match your values. Data and technology are critical in helping you to achieve your goals, but you first need to have a sense of where you are and where you want to go.
Only when you know what matters to you will you be able to look out and see if your values are reflected in the individual lawyers and law firms you are considering working with. Even then, it can be tricky.
One of the biggest challenges we see with our customers at Hence is when values seem aligned at one level, but misaligned at another. For example, companies may look at a law firm in aggregate and feel like the firm is well-aligned with their ethics and values, only to find that the individuals and teams supporting their internal matters do not. The same can happen in reverse. Particular lawyers may be well aligned, while the firm itself is not. And of course, neither companies nor values are static. They change over time.
The recent situation with Kirkland & Ellis and Paul Clement and Erin Murphy, for example, is a prominent and high-profile instance of differing values within the same law firm, and potentially also of changing values over time.
Kirkland & Ellis brought in Paul Clement, Erin Murphy, and more than 15 other attorneys when they absorbed Bancrofft PPLC in 2016. According to their press release, Kirkland brought in Bancrofft, and Clement in particular, to give “the Firm an unrivaled appellate capacity.” Clement was specifically described as a “Renowned Supreme Court Advocate.” Beyond this, Bancrofft and Clement also brought a track record of supporting controversial cases. According to reports, one of the reasons Clement left King & Spalding to join Bancroft was allegedly because they were going to drop their work with members of the U.S. House of Representatives to defend the Defense of Marriage Act (DOMA).
Simply put, it would seem that Kirkland brought in Paul Clement and Bancroft to argue and win cases in the U.S. Supreme Court. It is unclear how they felt about the types of cases Bancroft argued, but the types of cases were there for all to see.
From then on, Clement did what he was meant to. As recently as September 2021, Clement was highlighted in a Kirkland press release for being one of Law360’s 2021 Appellate MVPs, stating, “Paul Clement of Kirkland & Ellis LLP successfully argued four cases before the U.S. Supreme Court in the past year.” Then, at the end of June this year, Kirkland & Ellis won the landmark U.S. Supreme Court case of New York State Rifle & Pistol Association Inc. v. Bruen and lost the partners who led them to victory.
Kirkland did not provide much context on why they left, but Clement and fellow partner Erin Murphy published an op-ed in the Wall Street Journal stating that, “we were told to ditch our clients or leave… There was only one choice: We couldn’t abandon our clients simply because their positions are unpopular in some circles.”
According to Clement and Murphy, Kirkland was trying to get them to violate one of their most cherished values, namely that, “Lawyers owe a duty of loyalty to their clients.” Kirkland likely would not entirely agree with the implication that they are not loyal to their clients, however, it would seem that Kirkland was also considering other values.
What all this means for a company trying to find lawyers and firms that meet their values depends on the values of the company evaluating. For one, loyalty may be valued above all else. For another, avoiding controversy may be primary. A third company may be driven more by a mission to eradicate gun violence in the United States. A fourth to protect the Second Amendment.
Regardless of what your values are, if as a company you can articulate those values then two things should be clear from this example. First, there is a lot of data available about values that companies can use to evaluate. From press releases to court cases there is an immense amount of information available if you know how to find it and use it. Second, the challenge is a complex one that is only getting harder.
“By SEAN WEST, originally carried on Above The Law”
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