Republican lawmakers in Texas and Washington D.C. are threatening some of the nation’s largest corporate law firms if they provide what the lawmakers consider to be improper advice on issues such as climate change, diversity and abortion.
The Texas legislators have even threatened business lawyers with criminal prosecution and disbarment.
In letters sent Nov. 3, five GOP senators on the Judiciary Committee told 51 of the nation’s largest law firms, including 33 with offices and lawyers in Texas, that they have a “duty to inform clients of the risks they incur by participating in climate cartels and other ill-advised ESG schemes.”
The memo doesn’t describe what a “scheme” involving environmental, social and governance principles might look like. Nor does it say what is objectionable about efforts to defend the environment or democratize corporate capitalism.
In July, 11 members of the politically conservative Texas Freedom Caucus sent a letter to Sidley Austin Dallas partner and chair Yvette Ostalaza, threatening her and other corporate law firms operating in Texas with criminal prosecution, civil sanctions and a ban on practicing law if they help their employees in the state to get an abortion in another state.
The three-page letter to Sidley Austin, which has nearly 200 lawyers in Houston and Dallas, accused the firm of being “complicit in illegal abortions.” The Freedom Caucus members posted the letter on its website and sent a copy to Texas Attorney General Ken Paxton.
The letters, legal experts say, show that conservative Republican lawmakers believe they can score political favor with their base by attacking corporate lawyers, which they see as facilitating more liberal causes.
“Corporate law firms, especially in Texas because of the political environment, are taking these letters very serious,” said Kent Zimmermann, a consultant who works with several Texas law firms. “These are pure political hit jobs, but the law firms do not want to give any of these threats oxygen by responding.”
“It puts law firms in an unfair position in what amounts to a play to the (GOP) base,” Zimmerman said.
Zimmermann said law firm leaders need to respect the lawmakers even if the demands are not legally sound.
“It’s a stupid letter; a totally stupid letter,” Dallas legal ethics expert Randy Johnston said. “It’s kind of offensive in concept. “Some of the authors are also lawyers and are flirting with an ethical violation by this attempt to intimidate other lawyers in connection with those lawyers’ representation of advice to clients.”
Dru Stevenson, a professor at the South Texas School of Law in Houston, describes the letter as “mostly political theater,” but he cautions that it needs to be taken seriously.
Stevenson, who studies the legal issues associated with the ESG movement, says antitrust litigation may prove to be the only real weapon to curb increasingly popular trends toward climate change mitigation and, more specifically, energy transition and decreased use of carbon-based fuels like oil, natural gas and coal.
“The senators can’t sue, only threaten legislation,” Stevenson said. “For now, they are stuck (with the Biden administration), but the issue is worth keeping in mind. The political pendulum goes back and forth.”
We’ve seen this before, and as we get closer to the start of the legislative session we’ll see much more of it. Unfortunately, the voter backlash to Dobbs and the rejection of efforts to further limit abortion via referendum all happened outside of Texas. The fanatics have every reason to believe they’ve been vindicated, and they will act accordingly. The best part, as far as they’re concerned, is that the bluster is often enough to get what they want, because large firms are risk averse and would rather placate than fight. But if it comes down to it, or just because it’s what they want, they’ll still push forward with plenty of unhinged legislation aimed at criminalizing abortion and various forms of dissent. Some of this may wind up in court, and Lord help us if that happens. You know what I’m going to say about nothing changing until election results start to change. This is our motivation for next time. There’s no other choice.