The Right Coast

March 16, 2006
Say It Ain't So, Ropes & Gray, Part II
By Gail Heriot

I've gotten several e-mails as a result of my first post (immediately below) as well as comments posted on the Volokh Conspiracy as a result of Jim Lindgren's reference to that first post. Here are some of my thoughts:

1. First, I'm not saying that Ropes & Gray should have been required (on the facts of this case) to undertake the representation of Catholic Charities even if the attorneys there found Catholic Charities' conduct morally repugnant. That's not what's at issue here. Ropes & Gray had apparently already undertaken the representation of Catholic Charities. It's a little late in the day to claim moral repugnance. My point is that Ropes & Gray should not have allowed itself to cave to the pressure of third parties who were threatening to protest/boycott/picket the firm when it came to recruit at Harvard Law School. Ropes & Gray seems to have been given a choice between its own interests in a pleasant and successful hiring season at Harvard Law School and representing its client's interests. It apparently chose its own interests. That's choosing its own interests over an existing client's interests, not over a prospective client's interests.

2. One reader asked me whether I would be willing to take on the representation of a child molester and murderer. (And I think one of the Volokh Conspiracy commentators mentioned something about Saddam Hussein). The answer is yes, definitely. If a child molestor/murderer (or Saddam Hussein) wanted me to represent him and no one else more expert in the area were available, I would be happy to serve. For the right price, I would be happy to serve ahead of other lawyers (who like me know nothing of criminal procedure). I am also willing to do my share of pro bono work. I am a hired gun and proud of it. That's the way our legal sytem works. You don't have to love your clients to represent them effectively, and in fact it often helps if you don't. If you harbor fears that members of the community will mistake the arguments you make on behalf of your client for your own views and you find this a serious problem, you probably should seek another line of work. None of this has anything to do with this case, however, because Ropes & Gray had apparently already undertaken to represent Catholic Charities.

3. One commentator on the Volokh Conspiracy voiced a concern that I believe it is inappropriate for an attorney even to appear to cave to threats like those of the Harvard students. (I put it this way: "If Ropes & Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received." He or she apparently viewed it as childish to change course just to spite the students. But think of it this way: Suppose you spy a homeless person sitting out in front of the grocery store as you go in. You feel sorry for him and resolve to give him $5 when you come out. You even put a $5 bill in your pocket as you are about to leave the store, so you'll have it handy to give to him. But when you get outside, he standing up (perhaps a bit unsteady on his feet) and he threatens you, "If you don't give me $5, I'll take your groceries!" Do you give him the $5? I suspect not. If you are inclined to, I urge you to reconsider. It will encourage him to do the same with other, perhaps more vulnerable shoppers in the future.

Now imagine Ropes & Gray, which last time I checked (admittedly a long time ago) was the largest and arguably most prestigious law firm in Boston. If it appears to cave to student demands, those students will be emboldened to make similar demands of other law firms, knowing that if it worked on Ropes & Gray, it will probably work on other firms too. How are they supposed to know that Ropes & Gray had other reasons for wanting to terminate the representation? When the first (and largest) law firm appears to have caved, it will be harder for the next one (and the next) to hold firm. That's a terrible disservice to the legal community and to clients everywhere.

4. One commentator on the Volokh Conspiracy thought that I might not respect law students, because I referred to the Harvard students involved in this case as "snot-nosed brats." No, I don't call all law students "snot-nosed brats," just those who plan to boycott law firms for representing clients they don't happen to like. The plan to sign up for Ropes & Gray interview slots for the purpose of lecturing Ropes & Gray attorneys on morality I find particularly annoying. Send them a letter. Other students may wish to be interviewed in those slots.

5. One commentator believed that I had my facts wrong and that folks at Catholic Charities had earlier been more than happy to allow gay couples to adopt, but that the bishop had later prohibited them from doing so. I can check on that tomorrow, but I'm not sure how that changes anything even if true. (It was not mentioned in the two Boston Globe articles I read.)Ropes & Gray had undertaken to represent Catholic Charities in its quest for a religious dispensation from Massachusetts law on non-discriminatory adoptions. That's why the Harvard students were planning a picket line. In the past, the folks at Catholic Charities may have had different views from the Bishop's and Ropes & Gray may well have been happy to represent them too if they were then in control. But who cares?

6. That's all for tonight. Maybe more tomorrow.

Addendum: See Part III.