What is the Responsibility of Lawyers as Defined by War? |
| In a Notice and Comment blog by David Lat and published on March 8, 2022, addressing whether Big Law should drop their Russian clients and close their Russian offices, he voiced issues and made arguments that I believe are worthy of your attention. I have written about this before since the Russian invasion of Ukraine, and it is still a great concern for me. Below is what David Lat wrote for your consideration: “On Monday, in response to the Russian invasion of Ukraine, Deloitte and EY announced plans to pull out of Russia. In doing so, they joined the other two Big Four accounting firms, KPMG and PwC, which announced on Sunday that they’d be withdrawing from Russia. Since Russia’s invasion of Ukraine, major multinational corporations like Apple and Exxon [and now others] have announced the suspension or termination of their operations or sales in Russia. But Biglaw firms trying to resist pressure to withdraw from Russia might argue that as providers of professional services, law firms owe duties to their clients that are greater than the duties that companies like Apple or Exxon owe to their customers. The retreats from Russia of accounting firms, fellow professional-services firms with deep client relationships, are harder for Biglaw to distinguish away—and significantly increase the pressure on law firms to depart from Mother Russia. What have law firms done so far in terms of their Russian offices and clients? Not much. The most common response by firms to media inquiry is that they’re in the process of “reviewing” their Russian operations and client rosters.As of yesterday, per Law360, only a handful of Global 200 firms have announced plans to shutter their Russian offices, most notably Linklaters, Norton Rose Fulbright, and Kennedys. As for clients, around a half-dozen law firms have announced plans to sever ties with at least some of their Russian clients—but for most of these firms, it appears that they’re actually required to terminate these representations because of sanctions. And some of these firms might be cutting ties with Russian entities not out of any noble desire to support Ukraine but because they’re worried about getting paid, now that Russian banks have been banned from the SWIFT international payments network. This brings us to today’s topic for Notice and Comment: what should law firms do vis-à-vis Russia? Here are some questions to discuss and debate:Should firms with offices in Russia shut them down? What should firms do regarding their Russian clients? For firms that decide to drop Russian clients, how far should they go? Should they drop all Russian clients, or only those clients subject to sanctions, or only those clients with significant ties to the Russian government (whether subject to official sanctions or not)?Are law firms that leave the Russian market and Russian clients really punishing or pressuring the Putin regime? Or are these firms just making themselves feel better (and look better in the eyes of public opinion), while actually weakening the rule of law in Russia?What do I think? My current view: Biglaw should get the hell out of Russia. But I admit that this is more of a gut reaction, fueled by the outrageousness of the Russian invasion, and I haven’t thought through all the angles. So allow me to play devil’s advocate for a moment.Is my “get the hell out of Russia” position inconsistent with my general view that even the worst actors are entitled to legal counsel, and lawyers shouldn’t be held responsible or punished for the misdeeds of their clients? Consider this discussion by Dan Packel of the American Lawyer, based on correspondence he had with Peter Kalis, former chairman and global managing partner of K&L Gates: Kalis believes it would be repugnant if firms turned their back on [Russian] clients in the face of social opprobrium, citing the presumption that lawyers should see their engagements through, as long as ethical and legal ground rules don’t indicate otherwise.“I would rather have Russian clients properly advised by leading US and UK firms than see them blowing by sound counsel,” he wrote….Kalis suggested that firms balance their representation of Russian clients with pro bono representation of Ukrainian refugees and relief organizations.And there’s an argument that not all Russian clients are equally problematic. As Professor William Burke-White of Penn Law told Packel, “It’s one thing to not work for Russian state-owned enterprises; it’s another thing to think about what it means to abandon that market. I hope firms will think about how to disentangle themselves from elements of the Russian government but not completely abandon a country that depends on building the rule of law for its future.” There is a lot to think about there. I hope that you are able to sort it out because it is likely to come up again in reference to our national security and also the responsibility of lawyers in war time. |
