Coke Commands Its Lawyers To Discriminate: Can’t Do That, And The Law Firms Should Refuse (But I Bet They Won’t)

Coke Coercion

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:

Coke demands

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.

17 thoughts on “Coke Commands Its Lawyers To Discriminate: Can’t Do That, And The Law Firms Should Refuse (But I Bet They Won’t)

  1. Being originally from Atlanta, I used to have a soft spot in my heart for this hometown company. Drinking a Pepsi product was considered a sin. However, this news on the tail of their diversity training that encouraged its caucasian employees to “act less White” means the Coca-Cola Company will not be receiving another dime of my money. Truly, I hate to make such a decision because I stick to them and consider them final. In the scheme of things, it won’t amount too much to their bottom line, but it is the most I can do to state my disdain for this type of discriminatory and unethical behavior. I would certainly like to know who or what has hijacked the Coca-Cola of my youth. It is crying shame.

    • Agreed. I used to respond “Dr. Pepper” when the usual substitute was offered, now it’s always my first choice and root beer second.

      I could have ignored the idiotic training slides, presuming they were an isolated office and a rogue woke trainer, but this shows the rot is metastatic.

  2. Maybe the firms can hire their quotas from Georgetown:

    Georgetown Law professor caught complaining about black students on Zoom (nypost.com)

    This woman is being persecuted for expressing concern about the performance of black law students. Can’t have anyone discuss such a situation. Oh, and the black kids are at the bottom of the class because of racist grading. Tests aren’t graded anonymously at GTown? Surprising.

  3. I wondered how this letter made itself public. Then, I followed the link in the post, and realized that it was published on LinkedIn. here is the link:

    https://www.linkedin.com/pulse/open-letter-commitment-diversity-belonging-outside-counsel-gayton/?trackingId=hF5DSRHfQ6yqNW4u84LD4Q%3D%3D

    Did you read the comments to Mr. Gayton’s letter published on LinkedIn? Not one response questioned the propriety of Coca Cola’s position. I suspect many of the responders are from firms representing Coca Cola so that doesn’t surprise me, especially on a stupid web forum like LinkedIn, which is all about networking and building commercial relationships.

    jvb

    • jvb,
      I did read through the comments.
      I found one comment that suggested that it was an end-run around the Constitution.
      Otherwise, nothing.
      It is as if people do not realize that a lawyer is advocating that its vendors violate employment laws, possibly because he can’t advocate that his own company do so.
      It baffles me that people do not see that naked racism in the plan.
      But maybe I should not be surprised. Prejudice makes life easier. So we look for ways to justify or even celebrate it.

      -Jut

    • You are presuming that the breakdown of which side commenters fall on relates to public opinion in some way. It most certainly doesn’t. I wouldn’t comment, Linkedin is directly tied to my employer. The woketevists would immediately pounce and it goes back to my employer. I don’t want to test which side they would go on when it comes down to public opinion. On top of that, those who have made comments have likely been censored. Dissenting opinions are not tolerated at any high tech company anymore.

  4. I took this continuing legal education course about a year ago, just to see how bad it would be:

    https://www.clecenter.com/online-course-catalog/using-technology-to-build-a-culture-of-inclusion-in-the-legal-profession-5194/

    And it was horrifying. The “using technology” part was about the client using it’s own databases to monitor the demographics of the law firms it hired. Note that while Coke is dealing with a lot of small consumer claims, two of the speakers here were in-house counsel for Bank of America and JP Morgan Chase.

    • I attended this CLE seminar last year from the Texas State Bar: A SBOT Focus on Diversity Listening Session.

      The presenters talked about “diversity, sensitivity, and inclusion” while at the same time criticizing white male attorneys for their white privilege. Truly depressing.

      jvb

  5. One of my clients is looking at hiring a new sales executive, and they have someone they’re very very excited about. This person admittedly has a great resume–this is someone they legitimately should try to get.

    The executive team (all white guys) is also pretty sold on the woke thing. I wasn’t surprised to find out in the job interview that the candidate is a black female. The thing is–she knows exactly which way the wind is blowing. She knows that as a black female in this political climate, she can have WHATEVER she asks for. And I realized–this crazy emphasis on judging people based on the color of their skin will have such an amazing, outsized effect on such a tiny, tiny portion of the population–the 5-15% or so of black people who are lawyers, accountants, and other professionals. The world will be their oyster, because every single woke organization will be salivating at the prospect of snagging a minority for their big roles.

    Of course, this is a market distortion, one the likes of which we’ve never seen before. Even if you take at face value the claim that white men have had this advantageous place in society historically, you’re still talking about upwards of 3-4% of the population having this “structural” advantage (70-80% is white, 50% of that is male, and about 10% of that is your traditional professional), so there was still a LOT of competition among these top spots.

    Now that, what, 0.1%(?) of the population has this coveted spot of being a non-white, female professional, what is going to happen to their value? What is going to happen to the organizations that can’t afford these manufactured superstars? My tiny little client is looking at paying this candidate more than 4x the CEO’s pay (it’s still very much in start-up mode) and it’s probably a good 40% less than other offers she’s getting. They could probably get a similarly qualified white male for 70% of what she’s asking, but I don’t think they’d bite.

    This isn’t helping your average black person. It’s causing a huge distortion, and distortions always have a negative impact on the system as a whole. This is cutting off your nose to spite your face.

  6. Why are minorities and women underrepresented in law firm partnerships? Why do minorities and women leave law firms in high numbers?

    If these problems were addressed, then clients wouldn’t have to be taking these measures.

    FWIW — my firm is routinely asked to provide demographic information in response to RFIs and RFPs.

    • 1. And I think that request is inappropriate and irrelevant to the practice of law.
      2. Clients don’t have to be taking these measures, since they are illegal.
      3. “Why are minorities and women underrepresented in law firm partnerships? Why do minorities and women leave law firms in high numbers?” There are lots of reasons. Just assuming it is based on bias is convenient, but intellectually dishonest.

  7. My daughter, who is an associate at Wiley, says Amazon and Verizon have similar billing requirements. I was starting to get really exercised about this rubbish when the voice of reason intervened and reminded me “you’re retired, thank God!”

  8. And it would seem the link now goes to “page not found”. Is it ethical to hide something once it’s been published on the Internet?

  9. I’ve spent the majority of my career working for two different mega-corporations. I spent about a decade at a tech giant, and over a decade at a more traditional company about half the size (but still employing the population of a mid size city).

    The tech company was loaded with the “woke” and fully participated in hiring quotas. I saw the disaster it created, and most of all the harm it created to those it was intended to help. As others have predicted in comments to this blog entry, it creates the scenario where the caliber of the minority hire deviates down a significant amount from the general population. When you’ve got masters and PhD candidates from prestigious universities as the norm, finding a ‘qualified’ minority of the same caliber is neigh impossible when every other tech company is competing for the same individuals.
    It has several damaging impacts. In even the most charitable people, it is easy to fall into the bigotry of low expectations. If our goal is to smash stereotypes, it doesn’t help in that regard when you have a defining characteristic to many qualified minorities to be significantly less capable. Leadership doesn’t want failures, so they withhold opportunities from the qualified minority. Sometimes deserved, and sometimes not due to the low expectations. Tied into this is some Kruger-Dunning effect amped up because no one dares tell them any form of negative feedback. Noting the distinct difference between feedback and opportunity, those employees can easily fall for the seductive belief that it is based in racial bias. ​The end result is more racial division, not less.

    I’ve noticed a slightly different trend at my present employer. The high tech company has about 70% US based employees. The new company has about 20% US employees. It is a highly global company with a lot of mobility. Those who have immigrated to the US often have the position that the US is the least racist place they have ever been. I have witnessed an African American employee talk about what terrible discrimination they’ve faced in the workplace, only to have an African born employee counter with a “what the hell are you talking about?” This is followed by them going on and on about what a welcoming inclusive place the US and my employer is.

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