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Are We Opening a Pandora's Box in Criticizing Law Firms Challenging the 2020 Election?

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By Joseph Fawbush, Esq. on November 17, 2020 2:47 PM

Lawyers take on unpopular clients. Most people understand that clients accused of a crime or defending themselves in a lawsuit deserve representation, no matter how heinous the accusations. Even strategic offensive cases with dubious underlying legal claims are not exactly unheard of and rarely receive the scrutiny being afforded the firms representing the Trump campaign. While there have been significant criticisms over strategic lawsuits against public participation (SLAPP), for example, we haven't seen the kind of focused protests now taking place. Jones Day has represented both the Bin Ladens and Big Tobacco without suffering widespread boycotts.

Why have the law firms challenging the results of the election received so much blowback? Are the criticisms of these law firms merely a reflection of the times? Or is there a moral imperative driving these protests?

A Fierce Backlash

Jones Day, King & Spalding, Porter Wright, and even individual attorneys have received extensive criticism for bringing lawsuits contesting the 2020 election. The folks over at The Lincoln Project, who know how to run an effective negative ad, are spending $500,000 attacking Jones Day. The People's Parity Project is asking law students to sign a petition boycotting Jones Day and other firms.

So far, the criticisms have been effective. Porter Wright withdrew as counsel for Pennsylvania Republicans on Friday, November 13. Jones Day issued a statement defending its actions and distancing itself from the outgoing administration, even if its message failed to mollify anyone at all. Snell & Wilmer, the largest law firm representing the Trump campaign, withdrew from post-election litigation in Maricopa County, Arizona, on November 11.

That is not to say all attorneys are backing down. A lawyer representing the Trump campaign in Philadelphia recently filed a motion to sanction Kirkland & Ellis for a voicemail left by an associate of the firm. Kirkland & Ellis represents the Secretary of State for Pennsylvania in the post-election litigation, although the associate who left the voicemail was not involved in any way.

A Question of Civility?

The latter example does raise a question of ethics. In response to the increasingly adversarial nature of litigation, many states now include an oath regarding civility. For instance, in South Carolina, new attorneys pledge "To opposing parties and their counsel, I pledge fairness, integrity and civility, not only in court but also in all written and oral communications." It remains to be seen whether the Court in Pennsylvania will find any ethical violations have occurred, however, or issue sanctions.

Civility oaths are targeted toward opposing counsel, not attorneys voicing opinions on legal issues of the day. While personal attacks on the attorneys involved may raise questions of professionalism, boycotts and public protests are well within the bounds of ethical behavior.

It Is Ethical. Is It Wise?

While unlikely to raise any clear ethical concerns, condemning the law firms representing the Trump campaign is controversial. As reported by Reuters, Orin Kerr, a law professor at the University of California Berkeley, has argued that lawyer and media criticisms of Jones Day and other firms are wading into dangerous territory.

Criticizing a law firm for filing a frivolous lawsuit is, of course, perfectly acceptable. And law students are well within their rights to decide en masse not to interview with a law firm where they feel they may be asked to argue against their fundamental beliefs. But, as Professor Kerr argues, putting public pressure on an attorney or law firm to withdraw from a client can be a slippery slope.

Of course, the attorneys calling and publicly criticizing Jones Day and other attorneys representing the Trump campaign feel the lawsuits are attacking American democracy itself. It is not just taking on an unpopular client; it is attacking the very system that underlies American law. Public shaming and personal calls can, therefore, seem like an appropriate response.

Brand Management

Whether calling for boycotts or protests is appropriate may be a matter of opinion. For law firms, however, it appears that taking on certain clients or causes may become an issue of brand management. Social media and polarization have led to many people taking a firm stance on a number of legal issues. As polarization continues to grip the country, law firms may very well have to factor in how taking on certain causes will affect their public image and bottom line.

Related Resources

If Bad News Comes in Threes, Jones Day Is Probably Nervous (FindLaw's Greedy Associates)

Can Judges Ethically Attend Rallies and Protests Supporting Racial Equality? (FindLaw's Strategist)

Attorney Gloria Allred's Response to Critics: "They Don't Understand the Practice of Law" (FindLaw's Strategist)

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