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Law And More: The Kirkland & Ellis and Paul Clement Showdown

“’Unfortunately, we were given a stark choice: either withdraw from ongoing representations or withdraw from the firm [Kirkland & Ellis],’ Mr. [Paul] Clement said.”- The Wall Street Journal, June 24, 2022.

As the world now knows in this high-profile dispute, Clement made the decision to continue representing second-amendment clients. He is launching his own boutique firm for that. Before the showdown with Kirkland & Ellis Clement had won the SCOTUS case for the right to carry in public a concealed handgun in New York State.

This dispute showcases the power of a Big Law firm. Clement is no junior associate. He is a brandname and had been a US solicitor general. And, yes, he just nailed it before SCOTUS. But the law firm put the squeeze on him. 

Simultaneously, the clash flags the vulnerability of Big Law in the court of public opinion, at least at the current time. No longer can a law firm simply default to the argument that every entity deserves the right to a defense.

The legal sector obviously has learned a brutal lesson from how David Boies’ representation of Harvey Weinstein and startup Theranos had hurt his brand. Once the media published gush articles about this iconoclastic litigator. Here is the one from 2015 by Bloomberg BusinessWeek. Now, every negative development at the law firm he co-founded – Boies Schiller – is given prominent coverage in the media.

But not every law firm is caving to public opinion about what it selects to represent. Yes, lawyers have choice on that.

In an interview with Bloomberg Law, the chairperson of Paul Weiss Brad Karp was matter-of-fact about representation of Exxon. On the one hand, he noted that the firm does not take every case. On the other hand it had no ambivalence about defending that energy corporation. Here is the excerpt from that interview:

“Karp said there are certain types of matters and clients the firm wouldn’t represent, but he defended its work on behalf of its long-term client, Exxon. He said the firm’s victory at trial showed the case ‘was, and without any basis.’”

Currently Paul Weiss is defending the NFL in the racial discrimination lawsuit “Brian Flores, et al. v NFL, et al.” It had held a presser about that representation. 

In addition it is representing McDonald’s USA in the lawsuit filed by former Black franchisees about alleged racial bias – “Christine Crawford, et al. v. McDonald’s USA.” As I published in this article in ST Magazine about the pros and cons of purchasing a franchise, contract law dominates that relationship. Given that, McDonald’s USA could be arguing from a position of legal strength. As Paul Weiss partner Loretta Lynch went on record as saying: There is nothing in the contract guaranteeing success.

Power is fluid. In America, obviously, it is shifting from law firms to public opinion. That’s exactly why, as I hammer in this article published in O’Dwyer’s Public Relations, it has become a best practice in law firms to warn clients of the publicity risk in filing a lawsuit. As yet, that hasn’t been required by the code of professional ethics.

Full Disclosure: I had been on retainer to Paul Weiss.

Connect with Editor-in-Chief Jane Genova [email protected]. Complimentary consultations. No selling.

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