Analysis

A 'Cold Civil War' Catches GCs In The Middle

Law360 (November 12, 2020, 7:42 PM EST) -- "Jones Day, what are you doing? And, no, it is NOT your 'obligation to continue representing long-term clients.' See ABA Model Rules 1.16 and 3.3. You're enabling a grave threat to our democracy," read an online post by Matthew Bonness, a Maryland-based assistant general counsel for a major bank.

His was just one of hundreds of social media posts attacking the firms — primarily Jones Day and Porter Wright Morris & Arthur LLP — involved in suits filed on behalf of President Donald Trump and the Republican Party challenging last week's election and some mail-in ballots.

Others came from an international ethics consultant, a notable compliance expert and several people identifying themselves as in-house lawyers, while The Lincoln Project urged corporate clients to boycott firms involved in the cases as well as companies that hire them. Another group called People's Parity Project urged law students to refuse to join the firms after graduation.

Despite the flak, so far the firms remain committed to the cases.

Michael Cornfield, an associate professor at George Washington University who specializes in research on social media and politics, told Law360 he's never seen anything like this.

"We're in the middle of a cold civil war, and while I've seen big corporations take collateral damage to their reputations from social media critics for their campaign contributions, this is the first time I've seen big law firms undergo the treatment for being involved," Cornfield said.

The attacks are also clearly trapping corporations and general counsel in the middle, threatening consumer boycotts if the companies do not drop the firms.

For example, a tweet by General Motors this week about honoring women leaders at the company attracted some 40 responses related to the election lawsuits, including "sever ties with @JonesDay or be prepared for a #BoycottGM" and "Are you a Jones Day client? Do you really want your name associated with them?"

The critics suggest the firms are violating some ethical or model rule of professional responsibility.

Bonness, the assistant general counsel in Maryland, cited the ABA model rule that says a lawyer shall not represent a client if it will result in violating a rule of professional conduct, and another one that says a lawyer shall not knowingly make a false statement of fact or law or offer evidence that is known to be false.

He declined to elaborate on his views in an interview, but said they were his personal opinions and do not necessarily reflect the views of his bank.

Compliance expert Matt Kelly, the author of a blog called Radical Compliance, tweeted that the law firms could face an increased risk to their reputation.

Kelly said in an interview that the firms have to deal with the consequences of choosing to work with Trump "on apparently baseless claims." Those consequences, he added, could mean alienating some corporate clients and general counsel.

Jones Day issued a statement attempting to quiet the critics, explaining its suit was filed before the election on behalf of the Republican Party, not Trump, and deals with a constitutional issue of mail-in ballots.

"Jones Day will not withdraw from that representation," the firm added.

Porter Wright, which on Thursday won a Pennsylvania suit affecting a portion of mail-in ballots that had received an extended deadline to remedy defects, declined to comment.

Yet another large firm, Snell & Wilmer LLP, withdrew this week from a suit it had filed in Arizona challenging election results in Maricopa County. However, the reason for withdrawing was unclear.

Kelly said the Jones Day statement probably won't help its reputation much. "Most people are not going to get hung up on that technicality," he said. "It gets washed out on social media. They will look at the substance of working to help Donald Trump to stay in power when he has lost the election."

Reputational risk has always been around, Kelly added.

"What is new is that in our social media age, it is far easier for people to discover the working relationships and to form alliances to pressure corporate clients to dump law firms. ... Social media magnifies reputational risk. Is [it] fair? No, but it is there and they will have to deal with it," he said.

No corporation has publicly dropped Jones Day as a client, and no general counsel contacted by Law360 would discuss it.

Another tweet came from lawyer and ethics expert Hui Chen.

"When we were admitted to the bar, we took the oath to protect and defend the #Constitution of the United States. Some of us take that oath seriously. #democracy," she tweeted.

Asked by Law360 to elaborate, Chen, a former compliance counsel at the U.S. Department of Justice who now has her own ethics and compliance consultancy, said she considers any action taken in bad faith to damage the credibility of a lawful election, without evidence or facts, as a threat to democracy.

Lawyers, she said, have a higher level of responsibility in this regard. She also cited the ABA model rule requiring a suit to have a "basis in law and fact."

Chen said the lawyers "need to ask themselves whether they believe — in good faith — that there is basis in law and facts to support their actions. What is best for the law, and for America and democracy, depends how honest they are with themselves in answering that question."

As to what corporate clients and general counsel should do, Chen said "if a company suspects its law firm to be engaging in bribery or corruption, it would likely confront the law firm about that suspicion. Similarly, if a client values the democratic process and is uncomfortable with what it thinks Jones Day is doing, it is certainly within the client's rights to ask questions."

Another expert, Bruce Green, director of the Stein Center for Law and Ethics at Fordham Law School in New York, had mixed feelings about the situation.

"In general, representation of a client doesn't mean you endorse everything about that client," Green said. "I think lawyers have to be free to represent unpopular clients."

Even so, he added: "If I were a litigator, I would not use my time and talent to bring these lawsuits because I think they are baseless, and they are not going to win."

Green said he believes the true motivation for the suits is not to win, and perhaps they are "in part being used as fundraising efforts, and in part to galvanize Republicans. It's part of a larger reaction by the Trump administration to deny the results."

However, he said he doesn't think any lawyer should be disciplined for bringing a suit if it is not frivolous.

"Almost half the voting public voted for Trump," he noted. "I think it's better to bring nonfrivolous litigation than to resort to other things [such as] people out on the street with guns. If it gives people more time and helps them to accept the results, then that is helpful."

With a little time, the furor could die down, Cornfield said, adding that the "fusillades from keyboard warriors don't tend to last more than a few days. It's even rarer for sustained online attacks to develop into organized protests such as boycotts and marches."

He said one development that could prolong the conflict would be if a big company or an activist celebrity agreed to drop one of the firms, or for a law school to drop one from their normal recruiting roster. "I'd be surprised by either," Cornfield added.

He predicted that unless one or more of the cases leads to a halt in the vote counting, "the digital combatants will swing their sights onto new targets very soon."

--Editing by Philip Shea and Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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