opinion | Law Firm That Tired of Winning

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Protesters rally outside the Supreme Court on November 3, 2021 in Washington.


Jose Luis Magana / The Associated Press

We are blessed to represent a wide variety of clients before the Supreme Court, from large corporations and religious orders to criminal defendants and Native American groups. When we prevail before the High Court, we usually receive a round of congratulatory messages from law-firm colleagues for a job well done, especially when we have urged our clients to protect their fundamental constitutional rights. has helped.

This time, we got a very different message from our law firm. Having received a landmark decision reaffirming the constitutional Second Amendment rights of our customers in New York State Rifle and Pistol Association v. Bruen, We were presented with a dire choice – to withdraw from representing them or to withdraw from the firm. There was only one option: We can’t leave our customers just because their position is unpopular in some circles.

Some people may find this notion strange or bizarre. Many businesses drop customers or change suppliers at convenience. To others, the firm’s decision will seem like another example of acceding to Wake’s demands. But law firms should not operate like normal businesses. Lawyers have a duty of loyalty to their clients.

An attorney may withdraw from a representation for good reason, such as a newly discovered conflict of interest. But we defend unpopular customers. Rare individuals and companies have less need for lawyers lucky (at the moment) to become universally popular. And the least popular clients most in need of representation range from British soldiers in the aftermath of the Boston Massacre to defendants in the Boston Marathon bombing.

Our adversarial system of justice relies on representation of disputable clients, regardless of which party has most of the larger laws in place. This is especially true in constitutional matters. Many of our fundamental constitutional guarantees are designed to be counter-major, and many have been upheld by litigants who are deeply unpopular, but nonetheless face witnesses against them in Skokie, Ill.

This isn’t the first time we’ve left a firm just to stick with a client. What makes this situation different is that the firm approved our representation of these clients years ago, and leaving them would cost the clients years of institutional memory. More notable still, in a case we were asked to drop, we won in the Supreme Court on Thursday. Those who object to the representation are thus raising an issue with the Constitution as interpreted by the majority of the High Court.

The Constitution is the foundation of American independence, but it is not self-executing. It depends on the lawyers who are willing to take on controversial cases and on the judges who are able to hear the best possible arguments from both the sides. The jurisdiction of the Supreme Court is limited to cases and disputes, which means that judges cannot uphold the right to argue without a lawyer.

The American legal profession’s willingness to confront and stand by controversial clients has made our justice system the envy of the world. The profession should not hold back from its desire to tackle the most divisive issues. We certainly won’t.

Therefore, our decision has little to do with the issues of this case and everything to do with the underlying principle. We will make the same choice for any of our customers. The scope of the Second Amendment and the epidemic of gun violence is more controversial than the Federal Arbitration Act or even religious speech. But it makes it even more important to resist the pressure of leaving an unpopular customer. The problems posed by the recent increase of violent gun crimes are real. But the solution is not to sack customers who have just ratified a fundamental constitutional right. We are sticking with our customers.

Mr. Clement served as US Solicitor General, 2004-08. He and Ms. Murphy are appellate attorneys and have been partners in Kirkland and Ellis.

Wonder Land: Joe Biden prefers to talk about racism and guns rather than face the real problem. Images: AFP / Getty Images / Reuters / Shutterstock Composite: Mark Kelly

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Printed June 24, 2022, print edition as ‘The Law Firm That Got Tired of Winning’.