On Putting Clients First

A few days ago, Paul Clement, one of the United States' most prominent Supreme Court advocates, left his firm. He'd just prevailed in a significant gun rights case, and his firm had just announced it would no longer represent clients in such cases. Anyone who knows Clement and his practice knew it was only a matter of days. Clement had left another large law firm, King & Spalding, in 2011 when the firm withdrew from defending the constitutionality of the Defense of Marriage Act (a law that defined marriage as between partners of opposite sexes). Here's why I would have done the same thing. It has nothing to do with guns, unpopular clients, or law firm politics. 

According to American Lawyer, Clement's law firm, Kirkland & Ellis, is the largest law firm in the world by revenue, and the third most profitable. Its equity partners each made $6,194,000 last year. Clement served in a Republican administration, and he often represents clients whose interests align with the political right. It is therefore unsurprising that he took on a challenge to a gun law. However, Kirkland & Ellis was no longer on board. In a week where the Supreme Court had also invalidated almost 50 years of (very popular) reproductive rights protection, Kirkland & Ellis didn't want to be branded as the firm successfully invalidating (very popular) gun laws. Supreme Court advocacy is a tiny sliver of Kirkland & Ellis' practice, and it seems the rest of the firm's client base wasn't comfortable with Clement's clients. Kirkland & Ellis could drop the gun rights cases, or risk losing many lucrative clients. It chose the former. 

In both Canada and the United States, most of the public conversation regarding Clement's departure has centred around age-old legal ethics debates. Should a law firm be swayed by pressure from its clients? Should it put its financial interests first? After all, lawyers are supposed to be different from businesspeople -- and law firms, different from other businesses. We rely on lawyers to represent unpopular clients, including criminals we (and they) personally despise. Without that fundamental work, innocents would be behind bars, and the state would overreach. Some would respond that unpopular clients need a lawyer, not any lawyer. Lawyers can decline to represent a client for any or no reason, and gun rights activists could find another lawyer. Some even argue that the outcome of the gun rights case might have been different if the gun activists didn't have such a good lawyer. 

I think that's at least partly beyond the point. I think it is best to conceptualise the issue raised by Clement as dropping a client or, to be more specific, an existing client. Yes, the client is unpopular. But Clement wasn't just being asked not to represent the same client in future cases. He was asked to drop all of his gun rights cases, which include cases he has been working on for years. In a statement, his partner stated: "The representations in question were approved years ago, and withdrawing from them now would cost the clients years of institutional memory." In other words, lawyers shouldn't just drop a client in the middle of a case because it's politically or financially expedient. Call me old-school, but I fully agree. 

Our clients need us, often far more than we realise. Not just unpopular clients, all clients. The justice system is a very peculiar creation. Its rules at times require, and otherwise encourage, people and companies to be represented by a third party -- a lawyer. In situations where their lives, livelihood, or freedom is at stake, where someone might be trying to put them in a cage or get their money, they do not speak for themselves. A lawyer, who often was a stranger months or years ago, speaks for them. Having been that lawyer, I can confirm it is very easy to forget just how much is at stake from the client's perspective, and how difficult it is to trust someone else to be one's voice. If our clients entrust us with this much, how can we expect to drop them when we get unfairly criticised or even when we do not get paid? 

As a corollary, our clients should always come first. The least we owe them is to put them first, leaps before our personal and financial interests. We choose to act in a justice system that requires us to shoulder awe-inspiring (and proportionately stress-inducing) responsibility. We must honour that responsibility. When he left Kirkland & Ellis, Paul Clement knew he would lose many long-standing friends and partners he enjoyed working with. He knew he wouldn't make $6,194,000 a year, or however much more he was making at the firm. Paul Clement didn't leave Kirkland & Ellis because he likes gun rights cases or unpopular clients. He didn't leave the firm because some ethical rule or guideline said he had to. He left the firm because he felt he had to. He put his clients first. I would have done the same thing. Or, at least, I hope I would have had the courage to do so.