[Updated below to reflect latest news developments]
...if 2020 has taught us one thing, it is: always prepare for what you believe won’t happen.
Two BigLaw firms have come under intense public scrutiny in the wake of the refusal of the Trump administration to acknowledge the results of the presidential election. The firms are attracting immense negative media and public attention, and their employees and clients are getting public pressure to respond.
The pressure has culminated in recent days with news that The Lincoln Project, a super PAC of Republican operatives, and other critics of the Trump administration have begun to focus on law firms aiding President Trump’s attempts to “undermine the integrity of the U.S. election system.” The Lincoln Project recently announced an advertising and public-shaming campaign targeting Jones Day, Porter Wright, and the firms' clients.
GOP strategist and co-director of the USC Center for the Political Future Mike Murphy, tweeted: “This is a real reputation disaster for Jones Day; both with staff and with their #Fortune500 clients, especially those with consumer brands. Do they want to be associated with key lawyers in Trump effort to destroy faith in US elections? Face boycotts?”
For BigLaw, especially those that represent political administrations, now is the time to prepare for public attacks regarding who your firms represent and what your lawyers stand for.
There have been situations where law firms have chosen not to represent clients in controversial matters due to the enormous backlash. In 2011, King & Spalding chose not to represent the U.S. House of Representatives as it sought to uphold the Defense of Marriage Act (DOMA) outlawing same-sex marriages. The firm determined that, due to its support for gay rights, it would not take on the case. Firm Chairman Robert D. Hays Jr. then issued a statement:
“In reviewing the assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately, I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”
The Lincoln Project thus far has focused its campaign against Jones Day and Porter Wright on social media. There is talk of them launching an advertising campaign but as of the time of this writing, I have not seen specific ads.
...now is the time to prepare for public attacks regarding who your firms represent and what your lawyers stand for.
The recent social media attacks have gained momentum and reached in-house lawyers.
Staff counsel at the National Education Association tweeted, “Will not be recommending them as outside counsel. It is one thing to represent controversial clients, it is another to file baseless and frivolous lawsuits that undermine democracy and the rule of law. That is something no reputable lawyer or law firm should do."
The Lincoln Project has vowed to run television ads targeting Jones Day for “the role it plays in enabling Trump’s effort to overturn the election.” One reporter was told by a co-founder of The Lincoln Project that Jones Day clients also will be targets.
In addition to The Lincoln Project efforts, in San Francisco, a “Jones Day, Hands Off Our Ballots” mural has been painted on the street outside the firm's office. There also are media reports that some lawyers have resigned their positions at the law firms mentioned. Other lawyers said that they and their clients are unhappy with the decision to represent Trump in what they see as “taking on work that undermined the rule of law.”
Critics are publicly sharing and tagging law firm clients to pressure those clients on their positions regarding election integrity and to boycott Jones Day and Porter Wright, much of which is happening on Twitter.
According to The New York Times report, internally, Porter Wright attorneys have held meetings to “voice their discomfort with what they are being tasked to do” and at least one lawyer quit his job in protest. There also is speculation that Porter Wright has taken down their Twitter profile, which, according to accounts, had been active since approximately 2007. This information is yet to be confirmed.
Critics have been targeting Jones Day's firmwide hiring partner by name, saying that “no attorney with a shred of integrity would ever consider working for Jones Day” and publicly posting her contact information.
And as of 5:00 p.m. (ET) on Nov. 10, it appears that Jones Day has shut down public commenting on its various social media sites.
Asked and Answered: How Firm Leaders Should Prepare for Public Scrutiny and Criticism
Many BigLaw and midsized law firms handle government matters and high-profile government individuals. Keeping this in mind, as well as each firm’s fiduciary duty to protect all employees’ and clients’ best interests, every firm should consider protocols to avoid getting on a boycott list.
The Lincoln Project’s campaign against those law firms filing suit on behalf of the Trump administration serves as a reminder that your own firm’s high-profile clients and counsel can easily come under negative public scrutiny.
To prepare for potential public scrutiny and reputation management, consider the following questions:
1. Is our firm a potential target for negative public scrutiny?
If your answer is “yes,” be sure to review the questions that follow.
If your answer is “no,” then you should be clear as to why you believe your firm is not a potential target. Then, still answer all the questions that follow, because, if 2020 has taught us one thing, it is: Always prepare for what you believe won’t happen.
2. Should anyone from the firm be a public voice in media while controversial lawsuits are ongoing?
There is a big difference between having a controversial, high-profile client from the Trump administration and allegations that lawyers are violating their ethical duties while working to undermine the rule of law. The public understands the right to have an attorney, which is why criminal defense attorneys are not constantly under fire.
You may want to recommend that your firm’s attorneys stay out of the fray during active public smear campaigns.
3. What is the internal impact if the firm is mentioned about its representation of XYZ client?
If your law firm or attorneys have been questioned about representation of high-profile government individuals, consider confidentially asking your lawyers:
- What kinds of representations would make you reconsider your relationship with our firm?
- What types of clients could weaken your existing clients’ relationship(s) with our firm?
- Are any of our clients susceptible to the “cancel culture” – perhaps causing them to stop working with our firm?
4. What protocols, if any, should we put in place to review prospective clients - for example, political figures - for conflicts and cultural fit?
While law firms should not overly regulate their attorneys, it is in the best interest of every law firm and its clients to implement best practices and protocols for bringing on high-profile political clients. The protocols should include:
- Conflict check
- Financial competence check
- Merit review of claims (Rule 11 of Federal Rules of Civil Procedure)
- Cultural fit with firm
- Consequences for client base
5. Should we revisit our firm's media policy?
Firm media policies should be reviewed at least annually, as they often are overly broad and do not address firm protocols. Revisit your firm’s media policy and address all forms of media including national consumer news, social media, etc.
...the policy must be communicated throughout the firm
It is not enough simply to revisit a policy; the policy must be communicated throughout the firm, so lawyers and staff understand its relevance and conventions.
6. What should we be monitoring during a public outcry (and how)?
Utilize various AI-driven resources to monitor news coverage, public discussions, social media commentary, and responses to public pressure.
...provide daily reports to the executive committee...
Use social media monitoring tools, Google Alerts, and litigation reports.
Designate a team to both monitor the situation and provide daily reports to the executive committee and any attorneys who may be affected.
7. If clients question attorneys’ representation of other clients, how should the attorneys respond?
Given the vitriolic nature of the 2020 election, I suspect Jones Day and Porter Wright anticipated the backlash they are experiencing. Create talking points well in advance of public outcry.
...a generic statement can garner even more negative media attention depending on the circumstances
Example: “As a law firm, it is our responsibility to provide zealous legal counsel to our clients, no matter the circumstances. Every client deserves representation which is the foundation of the U.S. justice system.”
Take heed that a generic statement can garner even more negative media attention depending on the circumstances, and while I never recommend firms say, “no comment,” there are times when it is better not to respond.
8. Should attorneys be permitted to espouse their individual political beliefs on social media, especially during divisive times?
This is one of the more difficult questions because, as lawyers, we certainly believe in freedom of speech.
This is not a question that can easily be answered with a blanket recommendation – the decision depends on the firm’s culture, reputation, overall business goals, clients, and much more.
It is a question, nonetheless, that requires a response.
Why The Lincoln Project’s Campaign is Making Waves
The Lincoln Project’s response to this is more important than the usual social media outcry or even the media coverage because they target NPR-listening, WSJ-reading, high net-worth people who may also sit in the legal departments of the country's biggest corporations or lead the country's biggest law firms.
The Lincoln Project is important to journalists, highly engaged news consumers, and political junkies. Their target audience is similar to, if not the same as, BigLaw firms. Their campaign is causing a viral spread of the information. For the lawyers involved, it may cause embarrassment in personal relationships, embarrassment in relationships with clients or across law firms, and lost revenue.
Here are just a few of the big stories that were published on Nov. 10, 2020, after The New York Times broke the story:
- The New York Times, Growing Discomfort at Law Firms Representing Trump in Election Lawsuits
- Law.com, Who Are Trump’s Election Litigation Lawyers?
- The Washington Post, Inside the Lincoln Project’s new campaign targeting Trump’s law firm
- The Hill, Trump campaign lawyers worry about pushing lawsuits that could undermine election: report
- Vanity Fair, Turns out Some Lawyers Don’t Want to Help Trump Undermine the Election
- The American Lawyer, Lincoln Project Targets Jones Day, Porter Wright, Encouraging Employees to Resign in Protest
- ABA Journal, Jones Day and Porter Wright File Election Suits for Trump to the Dismay of Some of Their Lawyers
- The New Yorker, Inside The Lincoln Project’s War Against Trump
While The Lincoln Project isn’t as effective reaching low-information consumers – or in this case, voters – they certainly have gained the attention of national and legal media.
UPDATE: Nov. 11, 2020
Today, Jones Day issued a statement regarding the election litigation. The statement says, in part, “Jones Day is not representing President Trump, his campaign, or any affiliated party in any litigation alleging voter fraud. Jones Day also is not representing any entity in any litigation challenging or contesting the results of the 2020 general election. Media reports to the contrary are false.”
Hours later, various media outlets commented on the statement. Once such analysis comes from Ross Todd of Litigation Daily, Jones Day and the Curious Case of the Client Who Wasn’t. Todd noted that the “unprecedented statement” was “published on BusinessWire [on Nov. 10].” He says:
“Welcome to our new post-election reality. This whole episode is illustrative of the political landmines facing law firms who might put their name behind frivolous or unsubstantiated claims about election results. In a typical lawsuit, we’ve got Rule 11. In high stakes election litigation, especially in an election where 70% of Republican voters polled recently say that the election wasn’t free or fair, sanctions aren’t likely to remedy the damage done by claims brought in bad faith.”
In other news, an organization that produces political videos and content, Medias Touch, launched a smear ad against Jones Day targeting law students. The ad begins by asking, “Are you a law school graduate looking to work for a big law firm, are you interested in sedition and overthrowing democracy in the United States, well we have the place for you.” Within a few hours, the video had been liked more than 100,000 times (data comes from adding up likes on popular Twitter posts).
UPDATE: Nov. 13, 2020
The New York Times reported today that Porter Wright Morris & Arthur “abruptly withdrew from a federal lawsuit that it filed days earlier on behalf of President Trump.
The lawsuit filed on Monday, Nov. 16, naming Donald Trump, Lawrence Roberts and David John Henry as plaintiffs was filed against Pennsylvania Secretary of the Commonwealth, Kathy Boockvar, and the boards of elections in the counties of Allegheny, Chester, Delaware, Montgomery, Northampton and Philadelphia. The Democratic National Committee has filed a motion to dismiss.
In its memorandum in support of the Motion for Withdrawal of Appearance, filed Thursday in the U.S. District Court for the Middle District of Pennsylvania, Porter Wright states that the “Plaintiffs will be best served if Porter Wright withdraws.” The motion does not provide an explanation for the decision. The memo notes that Trump's PA election lawyer, Linda Kerns, will remain on as counsel.
Note: Screenshot was obtained from Katie Phan’s Twitter post (NBC and MSNBC Legal Contributor).
The Implications of Rule 11?
When law firms consider protocols for prospective client review, they are obligated to consider the merits of the claims. Rule 11 of the Federal Rules of Civil Procedure, section (b) states:
(b) Representations to the Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,
- It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
- The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argumentfor the extension, modification, or reversal of existing law or the establishment of new law;
- The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
- The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
The American Bar Association’s Model Rules of Professional Conduct, upon which most state bar associations rules rely, specifies that a lawyer shall not bring an action unless a basis exists in law and fact for so doing. This rule implies that lawyers must conduct due diligence in understanding the facts of the matter and reasonably determine in good faith that the claims are supported by evidence.
While it is rare that the courts exercise their option to enforce it, Rule 11(c) provides the authority for judges to impose sanctions against lawyers who have violated Rule 11(b).
Porter Wright did not provide a detailed reason for their withdraw, however, some reporters have speculated that it had much to do with public pressure and Rule 11.
Coverage of Porter Wright’s withdrawal: