Last week, two prominent Supreme Court litigators, Paul Clement and Erin Murphy, resigned from the major law firm Kirkland & Ellis.
Clement is the former solicitor general. Murphy worked in the solicitor general’s office and has worked with Clement on many major cases in private practice. Their resignation came shortly after the Supreme Court announced its decision in New York State Rifle & Pistol Association, Inc. v. Bruen. In its ruling, the court limited how New York could regulate carrying a handgun and put other state laws limiting guns into question.
Clement argued Bruen, and Murphy carried out crucial work on the case. In his resignation letter, Clement explained that the firm told him and Murphy that they needed to either drop out of existing representation of gun litigation clients or leave the firm. Clement and Murphy considered it wrong to drop their clients just because some of the legal establishment did not like the clients. In turn, the two men resigned and announced they will start their own firm.
Anyone who knows of Clement and Murphy’s work knows that they will be very successful in starting their own firm. Not only have they superbly represented many conservative clients but they have also successfully argued on behalf of an array of commercial clients whose cases do not divide down the traditional “Right vs. Left” framework.
To be clear, gun clients do not have a legal right to representation from Kirkland & Ellis or any major law firm, just as someone does not have a legal right to be on a social media platform. But like Big Tech’s quiet censorship of conservative causes, Kirkland & Ellis’s actions violate the spirit of its profession. The legal profession has long prided itself on giving a robust representation to any type of client. This principle has supported a public defender who has an accused murderer as a client and the American Civil Liberties Union representing Nazis who want to protest in the Chicago suburb of Skokie. In social media’s short existence, it has fueled many political movements, such as the Obama and Trump campaigns and the Arab Spring, by serving as a place to exchange a wide range of ideas freely.
The decisions by Kirkland & Ellis and Big Tech in favor of constricted opinion could have major consequences. Someday, there could be a situation in which attorneys are too afraid to take clients because of how it could hurt them professionally. This could deny a client proper representation. With social media, the exchange of ideas and support for various causes could be shut down and unfairly disadvantaged.
The operative question: Do we really want to have a society where conservatives have to go to certain types of firms and platforms and liberals have to go to other ones? That kind of division is not sustainable, but unfortunately, we will likely see more situations such as the one Clement and Murphy found themselves in.
Todd Carney is a lawyer and writer out of Washington, D.C. The views in this piece are his alone and do not reflect the views of his employer.
