How’s that Cowardice Working Out for You?

One of the things that’s always driven my work is the belief that choosing silence as a response to fear never works out well. We’re seeing that dynamic play out to great consequence in the legal profession right now, as firms have chosen different responses to some unprecedented political threats since the new government came to town last January.

From its first day in power, this administration has launched attacks on DEI policies and personnel in the federal government, with the shadow spreading across academia and corporations. While cowardice anywhere in civil society is bad for civic health, no lawyer gets their license without first swearing an oath to uphold the constitution, which is why their capitulation is especially harmful to democracy and freedom. 

Within weeks of the inauguration, nine of the biggest law firms in the business—Paul, Weiss, Simpson Thacher, Skadden, Willkie, Milbank, Cadwalader, Kirkland, Latham & Watkins, A&O Shearman—all cut deals with the administration:

• Paul, Weiss agreed to let the administration appoint an “outside advisor” to oversee the dismantling of their diversity programs.

• Simpson Thacher restructured their entire DEI employment practices after the EEOC came knocking.

• Skadden brought all pro bono work under firm control, which meant individual attorneys lost the freedom to work on cases that might not align with the so-called “values” of the current administration.

…And in addition to their various structural commitments, each firm pledged anywhere from $40 million to $125 million in legal resources to administration priorities.

While they may have believed that saying nothing, cutting a deal, and avoiding a bigger fight would protect their businesses, kissing the ring to cover their asses didn’t exactly pan out the way they expected:

• Cadwalader is now publicly bleeding staff, commenting to the Wall Street Journal that they are leaving because the firm gave in instead of pushing back against what many saw as an unconstitutional executive order.

• Microsoft just dropped Simpson Thacher and hired Jenner & Block instead–one of the firms that refused to capitulate to the administration’s demands.

• Law students at Georgetown and other top schools are telling these firms they’re not interested in working for people who won’t stand up to bullies.

• A senior partner at a firm that didn’t settle told the New York Times they’re pulling clients away from firms that struck deals, because those clients have lost confidence that these firms will actually defend the rule of law.

The settling firms tried to minimize their risk by giving in early, and the resisting firms took on what looked like the bigger risk by fighting. In the end, it was the firms that attempted to avoid a fight that miscalculated what risk actually meant in this situation.

That’s because the largest risk wasn’t actually the legal battle or the public fight with this administration. It was what capitulation would signal to everyone watching: clients who need to know they’ll be justly represented even when it’s hard, talent who need to know the firm’s principles aren’t for sale, fellow attorneys who need to know that their shared sworn oath to the constitution still has meaning, and competitors who are now watching to see how much pressure it takes to make a firm fold.

In other words, you risk more by bending to fear than you do by summoning courage.

When you can’t be counted on to defend your own commitments, you become a liability to anyone who might need you to defend theirs. When you stand up even when it costs something, you prove you’re worth the cost. So while the settling firms thought they were avoiding risk, they were actually just taking on a different kind: the kind where everyone now knows exactly how little strength, stamina, and spine they have.

Courageous communication might feel like a risk, but it actually buys us the time to take stock, to think about our audience’s needs, and to find creative solutions. It is this kind of communication that is our greatest and most valuable tool in protecting our organizations–not appeasement, which will not satiate the appetites of this administration and which will not serve your long-term interests well (or, as we’ve seen of late, at all). 

Of all the industries that had no right to capitulate–of all the professions that should have known better–law firms top the list. But if the people who swore an oath to defend the U.S. Constitution won’t do it, the rest of us had better step up–and that starts with rejecting silence and cowardice.