Risk Update

Public Risk Reading — Reputation Risk & LA’s Firm Refutation, Alito’s Ethics Advisor’s Admonishment

LA County Cuts Ties With Lewis Brisbois After Racist Emails” —

  • “The County of Los Angeles is ending its relationship with Lewis Brisbois after the law firm released racist, sexist, and antisemitic emails from two of its former senior partners.”
  • “LA County told Lewis Brisbois Bisgaard & Smith June 16 that it will get ‘no new matters from our office,’ county counsel Dawyn Harrison said in a statement Monday. The county also will review matters the firm is currently handling and decide whether to switch to other outside lawyers on an “individual case basis,” she said.”
  • “Harrison did not directly address the emails released by the firm in early June. The messages showed a pair of former partners who led a mass exodus from the firm in May using racist, antisemitic, and anti-LGBTQ remarks over the course of more than a decade.”
  • “‘Our office expects that law firms with whom we contract actively promote and practice inclusion, diversity, equity, and anti-racism, and treat everyone in their workforce with dignity and respect,’ she said. ‘It is critical that firms handling our most sensitive matters are empathetic to and compassionate toward the constituents we serve,” she said.”
  • “The LA County counsel’s office, which represents various government departments, assigns cases to contract law firms in areas such as litigation. The office’s apportioned budget for the current fiscal year is about $186 million, according to LA County records. “
  • “Lewis Brisbois has represented the LA County’s Metropolitan Transportation Authority, Sheriff’s Department and Board of Supervisors, according to court records.”
  • “‘We are in a dialogue with our longtime client and have no additional comment at this time,’ Lewis Brisbois spokesperson Chris Coffey said.”

Lewis Brisbois Email Scandal Is Instructive for General Counsel” —

  • “Rob Chesnut, former general counsel and Justice Department prosecutor, writes on in-house, corporate, and legal ethics issues. In this column, he analyzes lessons learned from Lewis Brisbois emails revealing racist and sexist behavior of two partners.”
  • “The investigation and outcome at Lewis Brisbois are interesting to track. The firm apparently found the emails in response to an anonymous complaint but then took the extraordinary step of intentionally publishing redacted versions of the offensive emails.”
  • “On one level, the decision to share these publicly was an act of transparency. But it might also be characterized as a costly act of revenge that backfired, with clients leaving the firm and turmoil within as leadership considers how no one spoke up.”
  • “It’s also an educational moment for general counsel everywhere who should always look for lessons from other companies’ mistakes. If a managing partner and head of the employment practice at a large national ‘woke’ California firm has the audacity to send such emails, is it inconceivable that offensive emails could be written by anyone at any company?”
  • “I think three steps are warranted in the wake of the Lewis Brisbois emails, all of which involve a close partnership with your company’s head of HR… Remind everyone that emails, Slack channel messages, and other company communication methods are part of company records that can be pulled up and searched for purposes of lawsuits and investigations—these things are hard to delete. Make sure you’re proud of your messaging and wouldn’t be ashamed to see it reproduced online.”
  • “Second, talk to the rest of the leadership team about the Lewis Brisbois case. Share the story and some of the emails. Discuss how leaders set the tone about what’s acceptable to say and do at any company. Barber was a member of the firm’s national management committee, and Ranen the youngest partner in the firm’s history.”
  • “People notice and are deeply influenced by the actions of an organization’s most successful people. Remind leaders that they need to protect their own personal brand and the company’s culture and set the right tone, because it likely will be emulated.”
  • “Third, think about how you manage and store communications. Many companies have alerts that screen emails and other company-controlled communication channels for offensive words and language—such tools can help detect problems before they go too far.”
  • “Make smart decisions around email and document deletion. Companies that retain emails and documents for years without a specific purpose make it challenging and dangerous, when lawsuits and investigations crop up. If you do have to conduct an investigation into employee misconduct, keep a tight circle of those involved in reviewing communications, and think carefully about how you share your findings.”
  • “And lastly, remember there are a patchwork of state privacy laws that may restrict when and how far you can go in looking for problems. While company-controlled communication channels like email are generally fair game for searches, looking into texts, private social media pages, or other areas may be legally problematic. Check applicable law before you hunt for problems.”

I did Alito’s ethics prep for his confirmation hearing. His new excuses are nonsense.” —

  • “As the chief White House ethics lawyer from 2005 to 2007, my [Richard W. Painter] job included screening potential Supreme Court nominees for compliance with ethics rules when they were court of appeals judges. I supervised a painstaking process of cross checking a judge’s financial holdings with every case in which the judge participated to detect any actual or apparent violation of recusal requirements under federal law.”
  • “Two judges who made the cut, and who otherwise were deemed exceptionally well qualified by the president and his advisers, were Judge Samuel Alito of the 3rd Circuit Court of Appeals and Judge John Roberts of the District of Columbia Circuit.”
  • “I helped prepare both for their confirmation hearings, focusing on the judicial ethics questions likely to be put to nominees by the Senate Judiciary Committee. We covered recusal from cases, gifts and financial conflicts of interest. Both confirmation hearings — Roberts’ in 2005, and Alito’s in 2006 — were almost entirely free of controversy over judicial ethics.”
  • “It’s been more than 15 years since I prepared Alito and Roberts for confirmation, but my recollection is that I asked both about any gifts, including travel that they could have received from people with interests appearing before them in their circuit courts. Although my concern at the time was free junkets offered to federal judges by corporate-sponsored judicial education programs, the questions I remember asking were inclusive of all trips. After all, I knew senators would ask similar questions at confirmation. As I recall, neither nominee had accepted such trips.”
  • “In the Journal, Alito argues that he did not need to recuse himself because he didn’t have a close relationship with Singer and that he had no reason to be aware of Singer’s connection to any case. He also claims that he did not need to report ‘personal hospitality,’ and that his seat on Singer’s plane ‘would have otherwise been vacant.'”
  • “Had Alito made these types of arguments while I was preparing him for his confirmation, I would have told him in no uncertain terms that he was wrong.”
  • “In my ethics meetings with senior White House staff, I emphasized repeatedly that free travel on a private plane is almost always an impermissible gift for a government official. Even in the rare instance that it is permissible because the host is a close friend, it must be disclosed.”
  • “But Alito says that he had spoken only a few times with Singer, meaning Singer was not a close friend, and Alito should not have accepted a free trip on his plane to begin with.”
  • “In ethics meetings my staff and I also discussed and poked fun of the empty seat theory. No American who is not a Supreme Court justice (or perhaps an ethically challenged governor) can just hitch a ride on a billionaire’s private plane. Try using the empty seat theory to board a plane or a cruise ship without a ticket and see what happens.”
  • “I have written before about how Congress should fix this issue: Pass legislation installing an ethics lawyer and an inspector general for the Supreme Court. The inspector general would investigate and report to Congress on alleged violations of ethics rules by justices and other Supreme Court employees.”
  • “The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.”