“Yellow shoe firms”

If you are a civil practitioner, particularly one with a mega-firm, you must read Adam Liptak’s article of April 11, in the New York Times. See Adam Liptak, The Case Against Gay Marriage: Top Law Firms Won’t Touch ItNew York Times.

The refusal of top law firms to represent those who sincerely oppose gay marriage is, in my view, a stinking stain on our profession. Instead of referring to these factories as “white shoe” firms, better to call them “yellow shoe” firms for their abject cowardice. Shame on them.



42 responses

  1. Agree, it’s a shame. Relatedly- do you think Paul Clement was glad to skip this one, hoping that he’d get a fat appointment and maybe even consideration for a Supreme Court seat if a Republican gets elected next year?

  2. The corporatization of law pursued by the AmLaw 100 over the past 15 years has had significant effects on our profession. I have yet to find one that could be considered positive.

  3. No big white- (or yellow-) shoe law firm wants to represent an obviously losing case unless it pays well (c.f. defending big tobacco).

  4. Why should they? It is not like there are no competent attys who share the view of the opponents including the membership of the Federalist Society and the conservative and right wing religious law groups’ These places are law factories and in his book on the profession a number of years ago Martin Mayer noted the change in the large law firms since he wrote his wonderful biography of Emory Buckner Justice Harlan’s mentor. Courage and large overhead and partners worried about revenue are not conducive to courage, and for their own reasons a lot of major corporations do not want to be associated with the opposition to same sex marriage

  5. If anyone deserves a chance to be represented on any issue, then what about small business owners who cannot afford overpriced (and often-incompetent) counsel, and who are further sidelined by 200-year-old local rules in each district court preventing corporate officers and shareholders from pro se representation, merely so lawyers can keep their monopoly? All of this even *after* Citizens United. Or what about poor minorities who can’t afford counsel, and are routinely turned away by lawyers of all kinds?

  6. Judge: In this country, we don’t have the tradition that barristers in England have: you take any client who can pay the fee set by your clerk. There are cases I’ve taken for a few dollars because that was all the client had and I was pissed at what was happening to the client and there are cases where the client couldn’t afford me even if his last name was Rockefeller.
    Yes, we’re supposed to be hired guns. But that doesn’t mean that I am willin to argue a losing proposition I don’t agree with for little or nothing.
    If a court appoints me to represent an indigent criminal defendant, I represent him no matter what he is charged with and no matter what evidence there is against him. And, that’s true even for the court appointed clients who treat me like shit. But, I owe that to the pofession. I don’t owe the profession a volunteer representation to argue a constitutional issue in which I don’t believe.
    While I would happily agree to represent the American Nazi Party’s right to march in Skokie, I wouldn’t agree to represent the American Nazi Party in a lawsuit to forbid Jews to own property or businesses. One, free speech, I beleve in. The other I find reprehensible.

  7. Judge,

    As with so many things, it’s just not that simple — the New York Times article belies a significantly more complex picture.

    While I can’t speak to the Michigan firm that was recently involved, it’s very clear that King & Spalding did not refuse the Paul Clement representation in the DOMA cases simply because of the unpopularity of its position (though that didn’t help). Without consulting any of his partners, Clement accepted a representation and signed a contract that limited the right of any employee of the law firm — nationwide — to publicly advocate against DOMA. As it turns out, that’s in violation of California employment laws and (obviously) deeply-held principles of the Firm.

    And to be clear, most major law firms aren’t even eligible to argue anti-gay causes any more. They’ve already staked out a position — because they’re actively involved in same-sex marriage cases on the side of the same-sex couples. Ropes & Gray is arguing one of the cases, Paul Weiss argued the DOMA case, and numerous other firms have argued state-level same-sex marriage cases and/or filed supportive amicus briefs. Having taken that position, can we fault them for not arguing the opposite?

    More fundamentally, Judge, I wonder why you think that a lawyer should be required to advocate — in a civil case, where no one’s due process rights are at stake — a position that would treat him, one of his employees, or possibly a member of his family as a second-class citizen and deprive him of full and equal citizenship. (That rationale is even more compelling when you consider that these lawyers are being asked to represent anti-gay organizations pro bono.)

    If you can see no principled position short of “coward” to explain why law firms might not want to take on these representations, then I think you need a bit more imagination.

  8. Perhaps it’s because one can think that the Constitution does not establish a right to same-sex marriage without holding any animus towards gays or otherwise wishing them harm. This was an uncontroversial position within the last decade and even within the last five years. That lawyers increasingly will not admit that reasonable persons can disagree on that legal question is very much a stain on the profession—and (along with concerns about profit) that seems implicit in the large firms’ decision not to permit assistance to the states attempting to uphold their democratically enacted laws and constitutional amendments.

  9. I’d rather have an attorney from a smaller firm spend enough time preparing it than a biglaw firm doing it for pro bono and their attorneys not spending enough time on it it because pro bono is not figured into billable hours.

  10. Anon.,

    While I am sure present counsel for the anti-gay marriage folks will do a fine job, the larger firms are generally where the active Supreme Court bar (which is very small) hangs out. Unless I am mistaken, the bar writ large does have a tradition of providing the Supreme Court with the very best advice and argument possible in matters of great public interest.

    An example: Take the great Supreme Court advocate John W. Davis and the desegregation cases.

    In Brown v. Board of Education, John W. Davis was the lead attorney for South Carolina (in the companion case styled Briggs v Elliott that was consolidated with Brown). Davis was one of the most distinguished constitutional lawyers in the nation. He had been Solicitor General and participated in more than 250 Supreme Court cases and appeared before the Court some 140 times. In private practice in 1954, he took the case without accepting a fee. One political science professor has said of Davis’ argument to the Supreme Court, “Had the case turned on law and precedent alone, Davis probably would have carried the day.” Robert E. Botsch, Briggs v. Elliott (1954), (December 9, 2010).

    Apparently, we have no modern-day John W. Davis. That is why I am critical.

    All the best.


  11. How is it a stain on the profession not to represent a position with which you strongly disagree even if you concede some of its supporters are not religious wackos?. After all there were reasonable people who disagreed with Brown though not segregationists, though John W. Davis was not among them and most of us regard Justice Marshall as one of the heroes of the case.

  12. Judge nothing is more representative of the bar than John W Davis, a rather ardent segregationist, appearing in Brown, but that hardly makes him Andrew Hamilton representing John Peter Zinger. Davis comes from the days of the no Catholics or Jews in the white shoe law firms. That major law firms are worried about recruitment because of this issue might even be taken as improvement.

  13. On Davis I find the quote from the political scientist misleading. It is true that Plessy had not been overruled but except for Gong Lum v Rice in 1927 in had not been reaffirmed and every effort to show equality with separation had failed so that the case was probably ripe for over rule even if it seemed a shock at the time. It is telling that despite Davis’s defense of equality of SC schools most of effort was in anticipation of judicial attack. Jimmy Burns who knew the Court, former Justice, was behind the arguably cosmetic effort, hired Davis, and later led massive resistance.

  14. You know, RGK, this is very much an issue that separates the old from the young. No big law firm would jeopardize recruitment by representing the anti-SSM side. It would be seen as tantamount to filing for Virginia instead of Loving.

  15. Judge:
    If this is true then the legal profession has suffered a blow. While simplistic, I hew towards the idea that a lawyer should not easily turn down a potential client (especially over fear that a client or cause is “unpopular”). Further, if accepting of the representation, others should recognize that the lawyer is merely providing a service and not engaging in any personal endorsement. The top law firms who are absent from this legal fight are big businesses that may be erring on the side of protecting their bottom lines at the expense of their professional honor. I hope they have trouble sleeping at night.

  16. repentinglawyer,

    Arguably cosmetic?

    “The state did have a factual basis for this claim [of making progress toward monetary equality] if one looked only at physical facilities. The state had addressed the pitiful state of education for blacks in the state relative to whites. Governor James Byrnes, just after taking office in 1951, called for new monies to help equalize the schools. He told the legislature: “It is our duty to provide for the races substantial equality in school facilities. We should do it because it was right. For me, that is the reason. If any other person wants an additional reason, I say it is wise.” Of course the additional reason was fear that unequal facilities could lead to court ordered desegregation. So the legislature passed a three cents sales tax, the first sales tax the state ever passed. Most of the new money was used to aid black schools. For example, in Clarendon County, $103,000 was spent in construction on white schools and more than eight times that much, $894,000, was spent on black school construction (Edgar, 100; “The State Paid Dearly”). Robert E. Botsch, Briggs v. Elliot (2010).

    All the best.


  17. Pay to play needs a better lure.

    Not gonna catch trout with catfish lures:

    Bates is part of a group of wealthy donors who make large contributions to the department for the privilege of playing police officer.

    According to Tulsa World, Bates, who made the fatal mistake that cost a man his life, is a local insurance company executive who has donated multiple vehicles, weapons, and stun guns to the Sheriff’s Office since becoming a reserve deputy in 2008.

    (Deputy Robert Bates Charged With Manslaughter In Shooting Death Of Eric Harris). We need better pay to play criminals too.

    Otherwise we will never get a good “reality” show going.

  18. Yes, yes, I feel it in my bones every morning, then my 26 year old son reminds me via email that I was once spry and don’t give up. Then I have another cup of coffee.

  19. If you are a new young lawyer at a big firm and get a chance to work on a case pro bono, and you lose, you might as well throw yourself under a bus.

  20. Where do you stand on commercials that, on the basis of client and representation, tout former prosecutors over defense lawyers for elected judge positions? (And, before you ask, I don’t believe in the elections themselves.)

  21. Since I saw this post when yesterday, I’ve been thinking about how I would respond. And then in today’s NYT I saw this letter (which I am going to reproduce in its entirety, and to hell with copyright laws). It said it better than I could:

    To the Editor:

    Re “The Case Against Gay Marriage: Top Law Firms Won’t Touch It” (front page, April 12):

    Standing up for clients like the detainees at Guantánamo who are powerless and friendless has indeed been in the best tradition of American lawyers. But the parties defending traditional marriage in the same-sex marriage cases now before the Supreme Court are neither.

    They are the state governments of Ohio, Michigan, Tennessee and Kentucky — hardly clients without the influence or resources to effectively advocate for their position.

    Bridgeport, Conn.

    The writer is a lawyer.

  22. Jon,

    In the Brown case, South Carolina may not have “needed” John W. Davis, but the Court did. If nothing else his detailed research of the 14th Amendment and his argument related thereto forced (or should have forced) the Court to confront the fact that the authors of the 14th Amendment would have been stunned by the suggestion that it required integration of the schools. All the best.


  23. At the risk of getting into a different topic, let me note that I do not think it’s a good thing that a few dozen lawyers dominate arguments before the Supreme Court. If the group is not already inbred, it soon will be.

    As for John W. Davis, he lost to Thurgood Marshall, surely not a member of the Supreme Court club.

    As for gay marriage, one of the cases will be argued by Mary Bonauto, who argued and won in Goodrich, the case that established same-sex marriage in Massachusetts. I don’t know Mary well, but from what I do know, I’m confident that she’ll be the equal of any member of the old boys’ club that appears before the court regularly.

  24. Which is why I am not an originalist. But an interesting observation.

    I was recently watching an interview of Justice Souter. He made the observation that the framers of the Fourteenth Amendment would not have understood the equal protection clause to require desegregation of schools. He also observed Plessy was decided a mere thirty years from the end of the Civil War, and that it was a very progressive opinion for its time. Separate but equal is an appalling but at the time of the Plessy decision it was a radically progressive idea to insist that railroad cars be of equal construction and comfort for all passengers regardless of race. I never really thought of it that way. I always thought of Plessy as an ignorant decision based on racial prejudice. But I understand Justice Souter’s point that without it, the Court may not have arrived at the Brown decision.

  25. Judge —

    Are you aware of any arguments that should have been made in favor of bans on same-sex marriage that were not made (or that were not made as well as they should have been)?


  26. David,

    Great and penetrating question. The answer is “no.” Oral argument may be a different story though!

    All the best.


  27. Judge–how important is oral argument? Increasingly, courts are not permitting it. In some federal districts it is not granted routinely even for motions to dismiss or motions for summary judgment, which frequently decide the lawsuit. In other districts, some judges have oral argument routinely, but others do not. For those of us who represent employees the refusal to allow oral argument is very serious, because we face motions for summary judgment in almost every case.

  28. Judge —

    I’m loathe to suggest that oral argument is anything but critical since it’s one of my favorite parts of my job, but I think all would agree that the briefing is where the vast majority of cases are won or lost. (Remember as well that, as the NY Times letter writer quoted above aptly noted, the folks defending the bans on SSM are hardly slouches. While the lawyers for the various states might not get as much SCOTUS bench time as those most commonly thought of as the SCOTUS home team, they get bench time day in and day out in federal and state appellate courts and can be remarkable advocates both in writing and on their feet.)


  29. The difficulty lies not with the firms (and the lawyers within them), but with the firm’s relationship with its employees. These firms have thousands of employees and associates, and probably want to retain them.

    I can imagine a firm having difficulty retaining its gay employees after signing a brief that said “gay relationships are not as valuable to society as straight relationships and therefore legislatures acted rationally in denying them legal protection.” If I were a gay employee and my firm said that about my relationship, I would be seeking employment elsewhere.

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