Not one but two former Big Law partners in President Donald Trump's cabinet bemoaned the assertiveness of the left in pushing its political agenda in remarks before the Federalist Society last week.

But unlike Attorney General William Barr's widely reported comments condemning the "resistance" for the "systematic shredding of norms and the undermining of the rule of law," Secretary of Labor Eugene Scalia's remarks about ideological self-censorship within big law firms went largely under the radar.

The former Gibson, Dunn & Crutcher partner said he was alarmed about a climate where several dozen law firms will put their names on amicus briefs aimed at defending the Deferred Action for Childhood Arrivals program and asserting that LGBT workers are protected by federal civil rights law, but none are willing to advance the opposite position.

"Anyone familiar with in the practice of law knows that these lopsided representations have nothing to do with the legal merits of the two cases or with the absence of lawyers at large firms who would be interested in representing a client on the other side," Scalia argued, noting that there were likely Big Law attorneys in the room Friday who would have been eager to file briefs defending the U.S. Department of Justice's position on DACA or the employers and the DOJ's interpretation of Title VII.

"One factor preventing that in these and other cases is self-censorship. Our elite law firms are hesitant to get involved in cases that might generate criticism from the left of center or that might conflict with views that other lawyers in the firm hold personally," he continued. "Secondly, firms fear repercussions from certain well-heeled corporate clients if they take positions disfavored by progressives. And sadly there's reason for that concern."

Scalia, who is the son of late U.S. Supreme Court Justice Antonin Scalia and whose former Gibson Dunn partner Ted Olson argued on behalf of DACA recipients before the high court earlier this month, said that firms should pride themselves for representing controversial positions on all sides of the political spectrum, "as they have in the past," and should push back against clients who seek to muscle because of another client represented by the firm.

"It can't be assumed that corporate executives know or will honor or defend the values of the legal profession," he said.

The turning point for Scalia was when former U.S. solicitor Paul Clement left King & Spalding in 2011 after the firm backed out of defending the Defense of Marriage Act, which stood in the way of same-sex marriage. Clement left for boutique Bancroft, but he's now a partner at Kirkland & Ellis, which acquired Bancroft in 2016.

And he warned of a slippery slope for firms that kowtow to the political stances of their major clients.

"Today a corporation accused of environmental crimes objects to a lawyer at its outside law firm filing a brief in support of the unborn," Scalia said. "Tomorrow, why can't someone schooled in today's 'cancel culture' use the same logic to attack the firm for defending that company's environmental depredations."

Scalia avoided the term "pro bono" in his remarks Friday. But all the same, he elided the distinction between cases on hot-button political issues like immigration or LGBT rights and traditional pro bono work.

The latter often takes on a progressive hue simply because, more often than not, it's the marginalized and vulnerable who need free representation. The status quo doesn't lack for counsel.

"When you see attorneys coming in from large law firms, it's usually and it's best when they're coming on board on behalf of people who don't have powerful lawyers—the powerless, the little guy," said Philadelphia attorney Steve Harvey, who won a landmark case challenging the teaching of intelligent design as a pro bono matter while a partner at Pepper Hamilton.

He pointed to Dechert's recent work challenging a Pennsylvania ballot initiative over a package of victims' rights initiatives known as Marsy's Law. Supporters had a powerful media campaign in which Frasier star Kelsey Grammer blanketed the state's airwaves. It fell to Dechert and the American Civil Liberties Union to make the case that the bill was poorly drafted and threatened constitutional rights.

"If there are attorneys in big law firms that have cases or positions that meet the criteria for pro bono representation recognized in the profession and by their law firms, then they should work on those cases," Harvey said, adding that if anything, he suspected that financial pressure, not political pressure, stood in the way.

William Lee, former co-chairman of Wilmer Cutler Pickering Hale and Dorr, also emphasized that Big Law attorneys often have substantial autonomy when it comes to pursuing causes.

"I think those comments paint with too broad a brush. Pro bono efforts at law firms are in large part the result of the efforts and interests of individual partners. That interest and effort spans the political spectrum," he said. "That's the way it should be."

Lee said that in his 12 years at the helm of the firm, he could not think of one instance where a corporate client intervened or suggested the firm take a position on a social or political issue. The closest example was the assistant secretary of the U.S. army, responding to the firm's representation of Guantanamo Bay detainees, suggested that clients should take their business elsewhere.

"We received an outpouring of client support," he said.

For Harvey, if anything, the pressure is in the opposite direction.

"Law firms are inclined to take cases that would be splashy but probably wouldn't offend too many of your clients: think Intelligent Design, think LGBT equality," he said. "The bigger factor is all the cases that you never take on because it might upset the clients."

Take climate change and other environmental cases connected to the fossil fuel industry. While Scalia's former firm Gibson Dunn has defended Chevron in some of the most high-profile climate change to date, it's hard to find major law firms on the other side of that fight.

"Big law won't take that on," Harvey said. "It's lonely."

|

Read More

Labor Appointee Eugene Scalia Earned $6.2M as Gibson Dunn Partner