In 2020, as discussed here, The NeverTrump Lincoln Project joined the anti-Trump Democrats in targeting law firms hired by the Trump campaign to challenge alleged irregularities in the election. Election law specialists Porter, Wright, Morris & Arthur and its lawyers were threatened with professional ruin and financial disaster, as they were told that daring to support the President of the United States constitutes a “dangerous attack on our democracy.” The firm, showing a dearth of legal ethics and integrity, withdrew, whining that the assault on its reputation created a conflict of interest, was disrupting the firm, and had prompted at least one lawyer’s resignation. Other firms dropped the campaign as a client, and the reason was fear—of losing clients, of being shunned in the legal community, of losing money. Mostly the latter.

How times had changed. When Bush Department of Defense Deputy Secretary Cully Stimson, a lawyer, gave a radio interview in which he condemned attorneys from large law firms who were representing Guantanamo Bay detainees pro bono and suggested that corporations avoid employing those firms because they were aiding the nation’s enemies, the legal profession reacted with indignation and horror. Karen J. Mathis, then the president of the American Bar Association, said, “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.” Prof. Stephen Gillers, the media’s favorite legal ethicist thanks to his penchant for being hard on conservatives and lenient on liberals, wrote, “This is prejudicial to the administration of justice. It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.” Christopher Moore, a lawyer at the New York firm Cleary, Gottlieb, Steen & Hamilton continued the profession’s defense of core lawyer ethics, telling the New York Times, “We believe in the concept of justice and that every person is entitled to counsel.”

Now, not so much. For many years, I have lectured and written about how increasingly law firms and lawyer allow themselves to be bullied and threatened out of representations that involve causes that the “good people”—you know, Democrats and progressives— deem “wrong.” In 2011, King and Spalding was chased away from representing a Republican House committee defending the Defense of Marriage Act. Later, firms hired to challenge Obamacare were similarly threatened out of taking on a cause that the Left considered unethical.

This schism between the profession of law and the business of law has constituted a major subject in my legal ethics seminars since the DOMA debacle. It has been almost entirely a phenomenon driven by progressives in the law and among companies trying to weaponize the law for a political agenda. This is a terrible blight on the profession, so excuse me if I express too much enjoyment upon learning that this particular tiger the Left had saddled just ate its rider.

Yum.

In February, two members of the Columbia University community filed complaints against law professor Katherine Franke with the university’s Office of Equal Employment and Affirmative Action, charging that her defense of students’ right to protest the Israel war on Gaza created a hostile environment for Jews on campus.The pro-Palestine (aka. pro-Hamas, aka pro-terrorism, aka. pro- Jew-killing) tenured professor hired law firm Outten & Golden to represent her. Five months later, it withdrew from the representation. No explanation was provided to Franke, but she learned later that the reason was pure business: the firm was afraid of losing clients and future business.

The ethics rules in every jurisdiction state that the firm is required to exercise professional judgment “solely for the benefit of the client” without “compromising influences and loyalty.” (Sure.) The professor filed an ethics complaint against Outten & Golden with the New York State Bar.

Outten & Golden’s response was honest, if chilling. The firm, which specializes in protecting and promoting employee rights, said in its statement that “because of the unique nature of the Israel-Gaza conflict, and the immense passion and pain that it can conjure, the firm made the deliberate decision not to handle matters arising from employee speech related to the conflict.” Translation: “We don’t want to get Jews mad at us: it will be too expensive.’ Or, “Ethics shmethics. This is a business.” The firm’s rationalization could have been used to explain, in an earlier era, its refusal to take on the defense of civil rights protesters or Hollywood writers held in comtempt of Congress for refusal to “name names.’

Franke has written an indignant protest over her treatment by the firm for The Nation. I’m going to call ethics estoppel on Franke unless she can point me to her protest in 2011 when King and Spalding, threatened by activist groups and told by its biggest client Coca-Cola that it might have to ‘explore other options’ if the firm continued to represent anti-gay marriage forces, dropped the DOMA case. Did she side with the lawyers representing the Trump campaign in 2020?Did she make the same principled calls for her profession to take on unpopular clients and causes without bending to threats and the possible loss of client fees that she is making now that her own cause—“From the river to the sea”— is being blocked from getting legal support? Law professors were almost unanimously in favor of these instances of unprofessional conduct. (Jonathan Turley was a vocal exception.)

Assuming she was standing with her progressive colleagues, Franke has quite a nerve citing the resignation letter of King and Spalding partner Paul Clement, who was handling the controversial DOMA representation. Clement wrote

I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.

I sided with Clement, publicly and in publications and seminars thereafter, at the time. “The legal community is being tested in the current moment in its commitment to its professed ethics and values,” Franke writes now. No, it was being tested 13 years ago. Now the phenomenon she finds personally inconvenient has settled in to the bones of the legal profession.

Sure, welcome to the party, Prof. Franke.

But it’s a party you’re suspiciously late joining.