The Texas Freedom Caucus may have kicked a hornet’s nest when it threatened Sidley Austin partners with civil and criminal penalties and disbarment in a letter last week, according to firm leaders in Texas and managing partners at firms with Texas offices.
Firm chair Yvette Ostolaza received the letter July 7 after Sidley signaled its intent to reimburse employees who sought abortions in other states. The letter, signed by Texas Rep. Mayes Middleton, a Republican, said litigation was already underway to determine whether Sidley had already participated in illegal abortions, including out-of-state drug-induced abortions in which employees took the second of two pills after returning to Texas.
The managing partners, who requested anonymity because they had not yet received similar demand letters from the Republican legislative caucus, said the threats were more likely to strengthen the conviction of lawyers and law firms that have already chosen to support the reproductive rights of their employees.
“I don’t know how smart it is to go after a bunch of lawyers,” said the managing partner of an Am Law 100 firm with offices in Texas. “We can all spend endless time and energy playing it through, and it might not play out as well for them as it would if they went after a less well-funded organization or people less involved with making legal decisions than law firms.”
Another Am Law 100 managing partner said they found the letter incredibly offensive, but didn’t believe it would scare law firms that already knew where they stood. “From my experience, it would only embolden them. And it’s not unlike getting threatening letters when you support civil rights—look at Jim Crow laws in the South,” the partner said. “It’s the same playbook, by my personal view, of a racist segment of society.”
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While no one seems to worry about offending the Freedom Caucus, managing partners said they know that choosing to support abortion rights as a firm will alienate some lawyers and staff at all levels. Absent the cultural artifact of water cooler chatter, law firms in the hybrid work setting are being defined by the core values they display on polarizing issues, one managing partner said.
Kent Zimmermann, a consultant for Zeughauser Group, said law firms are in a tough spot on highly charged political issues that have seemingly become more salient in the workplace over the years. He said like other businesses, firms have people and clients with opinions across the spectrum, and that it’s “tough to play all sides of some of these bedrock issues.”
But he also noted opinion polls still show Americans are generally in favor of abortion access, and that firms and their leaders are compelled by multiple trends pushing them toward favoring access as well—they’re more competitive than ever with each other, and the talent they’re trying to draw is younger, more diverse and more consistently wants to work at an organization with values they agree with.
He added these dynamics could change the map of legal industry investment.
“I don’t think it’s a today, turn-on-a-dime type of change for most firms,” Zimmermann said. “But I think over time, if there’s a lot more human rights available in some places versus others, that will change where the talent is and where the industry goes.”
An Am Law 100 firm leader with several Texas offices said he’d grant employees’ wishes to leave Texas if the Caucus is able to pass its proposed legislation, which includes felony criminal penalties for employees who assist in abortions regardless of where they take place. The Caucus also stated its ambition to enact civil penalties that mirror the state’s Heartbeat Act, granting Texans the right to sue any person who provides payment or reimbursement for another Texan’s abortion, no matter where it occurred.
“Let’s take it two ways: Either everybody does it and we win and we’re allowed to do it, or we lose and they uphold it,” the managing partner said. “It would certainly put a damper on doing business in Texas. I’d probably say that whoever wants to move out of there, that’s great. I wouldn’t look at Texas as a growth area for us after that.”
See here for some background. I’ll be delighted to see these firms go into “pissed off lawyer” mode against whatever crap the fanatics throw at them, but as I said before they’re at a disadvantage in that their foes can change the rules on them. I don’t know how to handicap that fight, especially if nothing much changes in state government. I can certainly see the possibility of many firms taking Texas off of their “growth area” lists, but that’s a long term trend, and it will likely hurt the effort to make Texas a less toxic place politically.
Which brings up the point that what I don’t see in this story is any suggestion of engaging in this fight on the politics field and not just the legal field. That’s messy and carries a lot of risk (not that the legal fight wouldn’t be either of those things as well), but in the end it’s a surer path to getting some stability. It’s just that it may take a long time for that to happen, and in the short term you’d need to fight the legal battles anyway. All I’m saying is that if joining the political fight isn’t on the menu of options, these firms are limiting themselves. We need all the help we can get, y’all.