This is a major development with narrow implications in the field of legal ethics, but potentially wide-ranging importance in the society as a whole.
We are just now learning—after all, you wouldn’t expect the news media to report this kind of sinister, reverse-racism bullying, would you?—that the general counsel of Coca Cola issued an open letter to the law firms representing it. [Full disclosure: I have taught legal ethics seminars for one of them] The letter decreed that these firms “commit that at least 30% of each of billed associate and partner time will be from diverse attorneys, and of such amounts at least half will be from Black attorneys.” You can read the letter here. Here are the edicts:
Note the warning that failure to comply on a given new legal engagement over two quarterly reviews “will result in a non-refundable 30% reduction in the fees payable for such New Matter going forward until the commitment is met and, continued failure may result in your firm no longer being considered for. . .work.” In addition, meeting Coke’s diversity requirements will also “be a significant factor in determining. . .inclusion and ongoing status on [Coke’s soon-to-be -released] panel” of “preferred firms.”
To which all ethical firms are obligated to respond, more politely, of course,
“Bite me. You are a client. You have no right to tell our firm how to best serve our other clients, and your demands, which have nothing to do with legal skill, experience or competence, are not even focused on serving your own company, consumers and stock-holders. We categorically reject these demands. Coca-Cola has been a treasured client, and we have been honored to represent it. However, this manifesto is both unethical and illegal. Our firm will proceed to determine what lawyers it recruits and hires, how they are assigned, and how they are evaluated based on an objective and neutral determination of their abilities and performance. We do not tell you how to make beverages, and you will not tell us how to practice law.”
Coca-Cola is requiring racial quotas, which are illegal. Using the cover-words “diverse’ and diversity” do not alter that reality. It is illegal for an employer to base hiring, staffing, and assignment decisions on race. Of course a company cannot require its contractors to break the law, and when dealing with lawyers, professional ethics come into play as well.
Bradley M. Gayton, Senior Vice President and General Counsel of the Coca-Cola Company composed and sent the letter. In my professional opinion, it is a serious violation of multiple tenets of the Georgia Rules of Professional Conduct on its face, particularly the provision right at the top of Georgia Rules of Professional Conduct Rule 8.4, “Misconduct“:
…It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to:
1.violate or knowingly attempt to violate the Georgia Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
That is exactly what Coke’s General Counsel is attempting to strong-arm the lawyers running its outside law firms to do: violate the ethics rules, and in many ways.
The letter also makes no sense. The ABA’s 2019 report on the legal profession found that blacks make up only 5 percent of Americans licensed to practice law. For Coke’s demands to be obeyed, a firm would have to hire a disproportionate number of the available black lawyers, making it overwhelmingly likely that black lawyers would be hired based on lower standards than whites, with better qualified white lawyers being rejected. (This is basically how the Harvard and Yale admissions process currently works.)
The letter’s edicts are literally based on skin color: the General Counsel expresses alarm over the tints of the “new partner headshots” on Coke’s law firms’ websites, and expresses dismay that the representation of black equity partners at law firms won’t equal the percentage of blacks in the U.S. population “until 2391.”
What? Law firm partners aren’t selected from the general population. They are selected, and appropriately too, from the pool of law firm associates, partners at other firms, and distinguished corporate lawyers. Law firm associates come from the pool of law school graduates with the best records at respected law schools. Black representation in both the pool of associate candidates and the pool of potential partners are, as the ABA stats show, far less than black representation in the general population.
Even if the letter were not based on statistical nonsense, however, its demands would be unethical. Nonetheless, I will be surprised if any of the firms currently serving their Dark Fizzy Masters will have the courage and integrity to defy them. The legal profession in general and law firms in particular have never seriously and honestly resolved the difficult inherent conflicts between the business of law, in which profit is all, and the profession of law, in which serving clients and society is the mission.
I hope I’m wrong, and to that end, I officially and professionally warn any law firm that is tempted to submit to Coke’s PR-driven coercion that doing so will be an unequivocal ethics breach with serious implications for the trustworthiness of its firm and its lawyer.