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

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Afternoon Ethics Aggravations, 11/10/2020: Mitch, Audra, Jeff And Joy

Annoyed

We just passed 300,000 comments on Ethics Alarms, and I’ll stack the consistent quality of them against any other blog on the web.

Thanks, everyone.

1.Regarding the gall, intellectual dishonesty and hypocrisy of Democrats and their supporters complaining about the President insisting on examining the returns and various irregularities before accepting the networks’ declaration that Biden won. I could not believe that Mitch McConnell and I would ever agree on anything, but we do this time. Yesterday he said in part on the floor of the Senate,

“Let’s not have any lectures, no lectures, about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election and who insinuated that this one would be illegitimate too if they lost again — only if they lost,” the majority leader added. In fact, millions of Americans signed a petition urging the electors to vote for Hillary Clinton after Trump won in 2016. The people who push this hysteria could not have any more egg on their faces than they do right now,”

Bingo.

2. Please note: unethical law firms just pay out damages and fines. It’s only individual lawyers—usually the little guys, sole practitioners— who get disciplined. A state court judge in Houston dismissed a $750 million lawsuit against the huge international law firm Jones Day filed by Berkshire Hathaway. The lawsuit alleged the law firm participated in a “massive fraud” in connection with its work on an acquisition in Germany. The case can be refiled, and probably will. A law firm committing fraud means that its partners were responsible for the fraud, but unethical or even criminal conduct by large law firms seldom result in discipline for the law firm’s partners. The technical reason is that bar associations don’t oversee firms, just individual lawyers, so for big firms assisting their clients in frauds and other crimes, there is safety in numbers.

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Seeing Ethics In September, 9/1/2020…

1. Well, THAT’s an easy question! At St Xavier Catholic Church in NYC over the weekend, the priest asked his flock, : “Do you affirm that white privilege is unfair…will you commit to helping transform our church culture” and embrace “racial justice.”?

The answer, of course, is “‘Bye!” No one should accept partisan and racist talking points from the clergy. This is an abuse of power, trust and position.

I think I’ll watch “Spotlight” again…

2. In case you were wondering, Ethics Alarms will have nothing definitive to say about the Kyle Rittenhouse saga, and won’t until I read a trustworthy account of what really happened. There seems no question that the original mainstream news media narrative that this was a white supremacist gun nut hunting peaceful protesters is the MSM misbehaving again. The backlash characterization of Ritterhouse as a brave citizen protecting local businesses from rioters also seems overly convenient. The video available suggests an element of self-defense, but it seems clear to me that the kid irresponsibly placed himself in a perilous position while provoking members of a less-than-rational mob. In the situation he voluntarily placed himself, Ritterhouse was likely to be killed or kill somebody. He was also violating the law by carrying his weapon when he was underage. Of course, the failure of the Kenosha police and the state to keep minimally endurable order also added to the deadly conditions.

3. Hey, Coup Plan E, good to see you! Where have you been?

The 25th Amendment arguments have  been relatively scarce lately, although Maxine Waters mentioned it a week ago without referencing any disability. She appears to think that the Cabinet can just remove the elected President with a vote. My God, she’s such an idiot.

If the President had three strokes, he sure recovered quickly. And doesn’t it take astounding gall to try this chestnut again now, when the Democrats are running a candidate who could be legitimately removed by the 25th Amendment ten minutes after he took the oath of office? Continue reading

Mid-Day Ethics Madness, 8/19/2020: Susan B., Fauxahontas, Utah…And “Gordie”

When I was looking through the 2012 posts yesterday, ultimately stumbling upon the long discourse about Barack Obama’s disastrous Presidency, I was struck by how, even in an election year, so many non-political ethics issues were discussed here. This is something that was already driving me crazy about 2020. Thanks to the pandemic, there is virtually no popular culture news. Legal ethics news is drastically reduced, as are reports from other sectors of society and culture. In this warped environment, politics spreads like kudzu, or killer bees, or snakeheads—you can choose your favorite invasive species or opportunistic organism analogy. I’m trying, I swear, but my over-all impression looking back on 2012 is that writing, and I presume reading, an ethics commentary blog was a lot more fun.

I’m sorry.

1. Today’s rejected Ethics Alarms comment comes from “Gordie,” was opining on the post on Ellen De Generis’s late hit accuser. He wrote,

Ellen was an a$$ to this boy and shes paying for it now. All you lip huggers need to wake TFU and rejoice when you hear truth no matter how unsavory or unpalatable you find it. Be a bully, get bullied. Dont you all see that Karma train pullin up? And with enough hands to slap every butt as it goes on by toot toot

Observations:

  • Welcome to my world. This is why so few new voices are added to the commentariat here.
  • Does anyone know what a “lip-hugger” is?
  • Tells in the comment that let us know the writer can’t tell an ethics from fuzzy slipper: mentioning “karma,” and the statement, “Be a bully, get bullied.”

2. Here is some non-political legal ethics news, and it’s important, if technical.

Before this week, only the District of Columbia, where I am licensed, allows non-lawyers to be partners in law firms. The majority position in the profession is that non-lawyers inevitably have a different alignment of values from the legally trained, and thus are not likely to be as sensitive to duties to clients, like confidentiality, and conflicts of interest. Pure “investors” are also banned from buying a share of law firm profits, because they are deemed likely to be governed by financial needs and motives rather than the best interests of clients.

When the D.C. bar decided to break the mold decades ago, everyone assumed that other jurisdictions would follow its lead, and soon doctors, engineers, scholars and accountants, among others, would be joining firms and allowing them to add new services. (Europe and Australia already allow  such “multidisciplinary firms.”) It didn’t happen.

Now, however, the dominoes might be starting to fall.  From the ABA Journal: Continue reading

“Welcome July, You Can’t Possibly Be A Bad As June” Ethics Warm-Up (Or Can You?)

Let’s try to get this month off to an ethical start….

1. Well, this sure won’t do it…Today’s Spineless Administrator Award goes to… Along with other university leaders, he  pressured Stephen Hsu to resign from his position as vice president of research and innovation after the school’s Graduate Employees Union , which represents teaching and research assistants, examined Hsu’s blog posts and interviews in search of damaging statements that could justify his “cancelling.”  Hsu had, after all, cited with favor a study that found police are no more likely to shoot African-Americans than anyone else. “We found that the race of the officer doesn’t matter when it comes to predicting whether black or white citizens are shot,” concluded the Michigan State-based research.

It is not the only study that reached this conclusion, but as you have no doubt noticed, for now at least,  Facts Don’t Matter.

The graduate union maintains that administrators should not share research that runs counter to public statements by the university, “It is the union’s position that an administrator sharing such views is in opposition to MSU’s statements released supporting the protests and their root cause and aim.”

Hsu stepped down from his vice president role, but will stay on as a physics professor. The union had circulated a petition against Hsu and an open letter signed by more than 500 faculty and staff at Michigan State argued that Hsu supports the idea that intelligence is linked to genetics. A counter-petition in support of Hsu has had more than 1,000 signers, including many fellow professors from across the country, stating in part,

“To remove Hsu for holding controversial views, or for inquiring about controversial topics, or for simply talking to controversial personalities … would also set a dangerous precedent, inconsistent with the fundamental principles of modern enlightened higher education.”

On his personal website, Hsu rejected the claim of “scientific racism,” stating  that  he believes “that basic human rights and human dignity derive from our shared humanity, not from uniformity in ability or genetic makeup.”

President Stanley defended his decision to pressure Hsu to resign in a statement on June 19:

“I believe this is what is best for our university to continue our progress forward. The exchange of ideas is essential to higher education, and I fully support our faculty and their academic freedom to address the most difficult and controversial issues.”But when senior administrators at MSU choose to speak out on any issue, they are viewed as speaking for the university as a whole. Their statements should not leave any room for doubt about their, or our, commitment to the success of faculty, staff and students.

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Morning Ethics Warm-Up, 1/29/2020: Dogs, Mike Bloomberg, Joe Biden, D.C., Jimmy Kimmel, Threatening Deplorables And Restricting Rights

Well, dogs are good, anyway…

1. Stop making  dogs defend Mike Bloomberg!…Is there anything too trivial that people won’t use to attack politicians? A CBS News video began circulating online yesterday afternoon showing Michael Bloomberg shaking hands with a man in Burlington, Vermont, then taking his dog’s upper jaw  in his hand and “shaking” the dog’s  snout  He then scratched the dog’s ears. The social media mob called him a dog abuser.

Morons. That’s a move that most dogs enjoy, as well as someone grasping their whole muzzle. It shows Bloomberg is comfortable with and knowledgeable about dogs. I used to do both moves with our 165 pound English Mastiff, and our Jack Russells.

2.  I know this is of interest to almost nobody who isn’t a lawyer, but trust me, it’s a big deal. The District of Columbia has long been the only U.S. jurisdiction that allows law firms to have non-lawyer partners, a structure prevented everywhere else by the general prohibition on lawyers sharing their fees with non-lawyers. When D.C. adopted its revolutionary approach, it assumed that the states would soon follow, with the American Bar Association’s assent. Because that hasn’t happened, a state-licensed lawyer with a D.C. license participating in a legal firm in D.C. could technically be found to  be violating that state’s ethics rules , though the District has negotiated a truce in that potential controversy.

Meanwhile, those special law firms with non-lawyer members are proliferating like legal rabbits. Now  a Jan. 23 press release tells the world that the District of Columbia Bar is taking comments regarding proposed changes to its ethics rules that could allow external ownership of law firms, as well as blended businesses in which lawyers and non-lawyers provide both legal and nonlegal services, like accounting. Or massages–who knows? Right now, law firms by definition can only practice law.

Perhaps even more significantly, California, Utah and Arizona are also studying changes that would relax ethics rules barring non-lawyers from holding a financial interest in law firms. Continue reading

Is The DLA Piper Sexual Harassment Case The Legal Community’s Harvey Weinstein Scandal That I’ve Been Predicting? Sure Looks like It…

For almost two years, I’ve been telling my ethics training attendees at bar associations and law firms that their profession has a serious sexual harassment problem, that there are many Harvey Weinstein, Esq,s out there, and the arrival of a major big law firm scandal or ten is inevitable.

Earlier this month, I wrote about the emerging sexual harassment controversy at DLA Piper,  the largest law firm in the world. Vanina Guerrero, a junior partner at  Piper, alleged that Louis Lehot, a notable “rainmaking” partner of long-standing who  pursued her,  groped her, and then retaliated when she rejected his advances. I wrote in part,

The kind of harassment she alleges is not the kind of behavior that is a secret, whether it occurs in a law firm in Hollywood, on a morning news show, on a TV production set or in an opera company, just to name some familiar locales. She says that the partner who recruited her had groped or kissed her on four occasions, and through her attorney’s supplemental filing with the EEOC, that the partner “regularly throws temper tantrums in and out of the office,” and no one at the law firm has reined him in.

There is now more information regarding this story. None of it proves that Lehot was a sexual harasser taking advantage of his power in the law firm to intimidate and abuse women for his own enjoyment, or that DLA Piper’s management  enabled him by applying the King’s Pass, concomitantly creating a toxic culture at the firm, so everything still has to be followed by the magic qualifier, “alleged.” Still, the signs are ominous: Continue reading

Never Mind, Ms. Guerrero: Hillary Clinton Says You Should Just “Get Over It”

Vanina Guerrero, a junior partner at mega-law firm DLA Piper, has alleged that a rainmaking partner who recruited her to the firm pursued and groped her, and then retaliated when she rejected his advances.

“I experienced such horrific conduct at the hands of a senior male partner and deserve to openly litigate my claims,” she wrote in a letter. The problem is that she is bound by her agreement with the firm to submit the dispute to binding arbitration.

A “rainmaker,” eh? That rang a bell…YES! Here’s a post, “Tales Of The King’s Pass: The Rainmakers,” I wrote last year about the typical attitudes on major law firms when protecting female staff against sexually abusive partners who make a lot of money for the other lawyers. I wrote in part, in revulsion over an ABA Journal article about how a sensible firm with a harassing but lucrative partner had to “balance’ considerations…

[T]he consultant begins quoting another ethics-lite law firm consultant. Apparently they are all like this. He says that…

“…most firms tolerate rainmakers’ abusive behavior unless it threatens something essential in the firm’s culture. Peters says firms must draw a line when the “fabric of the firm” is at risk. “The firm must win. No one, not even a rainmaker, can be allowed to destroy the fabric of the firm.”

That’s the standard? Destroying the firm? I think what this Authentic Frontier Gibberish means is that when a rainmaker does so much internal damage to the organization that even all the money he or she brings in won’t make up for it, that abusive rainmaker has to go. Talk about a low bar! “We’ll let you get away with just about anything since you make us so much money, but just don’t destroy the firm.”

It sound like DLA Piper’s management read the ABA Journal’s “How to justify keeping harassers around when they make you a lot of money” guide. Guerrero says she reported the situation to Sang Kim, one of the leaders of DLA’s Northern California offices. He said that it sounded like a he-said, she-said situation, and she should “talk it out” with four senior partners, including the partner she accused. That’s a common dodge. Continue reading

The Big Law Firm’s New Partners

In early December of last year, Paul, Weiss, one of the country’s largest and richest firms, announced its new partners: twelve young white lawyers, and one similarly hued woman.

Being that group identification is everything to certain well-placed people today, the announcement became an instant “public relations nightmare,” according to many media accounts. Sensitive to being sufficiently “woke,” many large companies had their  general counsels, sign an open letter  calling on law firms firms  “to reflect the diversity of the legal community” or they would send their business elsewhere.

What is the assumption underlying that letter? Is it that whites were chosen over better qualified minority lawyers as an act of bigotry and racism? Noooo, nobody’s suggesting that. Are the signatories to the letter really saying that less qualified lawyers of color should be advanced rather than these lawyers? It can’t be that, can it? I would say that a law firm that does not make every effort to have the very best lawyers available for the benefit of the clients is treading close to unethical behavior. A firm can’t prioritize diversity, whatever than means, over its own abilities to represent clients.

I nearly dropped Above the Law, but the reliably knee-jerk left and ethically obtuse online rag is great for these stories, and didn’t disappoint this time. Joe Patrice, the editor, wrote, Continue reading

Tales Of The King’s Pass: The Rainmakers

Are you also an asshole? Because if you’re enough of a rainmaker, you can be as big an asshole as you want!!!!

Wow. You don’t get much more cynical than this.

Here’ s Karen Kaplowitz, the founder of The New Ellis Group, and a business development strategist and coach for over 20 years, essentially denying the existence of ethics and integrity in law firms as a business necessity.  In a piece on the ABA Journal titled Abuse of power within law firms: The rainmaker dilemma, she begins,

Despite their obvious economic value to their organizations, Bill O’Reilly, Matt Lauer and Harvey Weinstein were quickly sacked. Law firms by contrast have often tolerated bad actors who are major rainmakers. Can law firms tolerate abusive rainmakers in the current business climate? Do firms need to be more aggressive about confronting abuses of power?

Can they tolerate abusive rainmakers, in this or any other business climate? Sure they can. Should they? Absolutely not. “Do firms need to be more aggressive about confronting abuses of power?” What? Does this question have to be asked?

Kaplowitz goes on..
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