An autocrat’s price for belonging in law practice

This blog’s premise was that I could learn more about diversity, equity, and inclusion by somehow cajoling folks different than me to open up about their lived experiences with professional belonging as lawyers. From the get-go this was hard to pull off, but in today’s climate, it’s nearly impossible.

With the subtlety of a Selma cattle prod, the Administration is targeting large law firms, including Covington & Burling, Perkins Coie, and Paul Weiss. Covington has represented former special counsel Jack Smith; Perkins Coie represented Hillary Clinton’s 2016 presidential campaign and also Democrats in 2020 voting challenges; and Paul Weiss‘s former partner Mark Pomerantz investigated Donald Trump while at the Manhattan District Attorney’s office. The Administration suspended these firms’ security clearances and began the process to terminate all of their federal contracts, thereby dealing body blows to the firms’ client relationships, reputations, and revenues.

Each of these Presidential Actions attack the firms’ diversity, equity, and inclusion programs. The March 6 Perkins Coie Executive Order provides:

Sec. 4. Racial Discrimination. (a) The Chair of the Equal Employment Opportunity Commission shall review the practices of representative large, influential, or industry leading law firms for consistency with Title VII of the Civil Rights Act of 1964, including whether large law firms: reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.

(b) The Attorney General, in coordination with the Chair of the Equal Employment Opportunity Commission and in consultation with State Attorneys General as appropriate, shall investigate the practices of large law firms as described in subsection (a) of this section who do business with Federal entities for compliance with race-based and sex-based non-discrimination laws and take any additional actions the Attorney General deems appropriate in light of the evidence uncovered.

Obligingly, this week the EEOC’s Acting Chair sent letters to 20 of our country’s largest law firms requesting detailed information about their DEI programs and practices. The requested information is sweeping in scope and highly granular, including the names, race, sex, contact information, law school, and law school GPA for all candidates considered or hired for internship and summer associate programs since 2015, and similar personal information for all individuals considered or selected for firm leadership programs, partnership, or lateral hiring in the last decade. Other requests focus on firm DEI practices, such as “Any [sic] point since 2019, for any process for hiring, promotion, or selection for management or leadership roles, did your firm use any form of a diverse slate policy (requiring a certain number or percentage of candidates to be candidates of a particular race, ethnicity, sex, or other protected characteristic)? If so, please describe the policy or practice in detail and provide all related documentation.”

How are the law firms reacting to this onslaught? Perkins Coie is fighting back, challenging the March 6 Executive Order as unconstitutional. District Court Judge Beryl A. Howell has granted a temporary restraining order enjoining enforcement of most of the E.O., though not the section regarding EEOC and DOJ review of the firm’s DEI practices.

But this week Paul Weiss folded, striking a deal with the Administration by committing to provide $40 million of pro bono work on causes supported by the Trump administration. Regarding DEI, things appear murky – the Administration says that Paul Weiss agreed to abandon its “diversity, equity, and inclusion” policies, while the firm’s chairman Brad Karp described the agreement as a commitment to “merits-based” hiring, promotion and retention. The firm also committed to hire an outside expert to conduct “a comprehensive audit of all its employment practices.”

Outrage has erupted (see here, here, and here). In her open letter resigning as an associate from Skadden, Rachael Cohen excoriated her firm for thus far failing to adequately resist the Administration’s attacks on the legal profession.

There’s a lot going on here. A cynic would be excused for viewing this as both political and personal retribution and as a power-play to take the legs out from under the large law firms that could effectively challenge the Administration’s agenda(s) in court. But the legal industry’s commitment to diversity, equity, and inclusion is caught squarely in the crossfire of politics and power.

So, what does it mean to belong in law practice? We’re about to find out.