Twin Cities Diversity in Practice (TCDIP) seeks to recruit and retain minority attorneys in local law firms. So far, so good. But an article in Minnesota Lawyer tells us that there is trouble in paradise. The Maslon Edelman firm wants to join this consortium of 19 law firms and nine businesses. But the Minnesota Association of Black Lawyers (MABL) objects. The reason? Maslon attorneys represented the plaintiffs in the (partially successful) challenge to the University of Michigan's affirmative action policy.
The Minnesota Lawyer article continues:
In a letter last April to Hennepin County District Court Judge Tony Leung, the chair of TCDIP’s board, then MABL President Jerry W. Blackwell said that MABL believes “the Maslon admission carries an unacceptable ‘taint’ that is likely to undermine and frustrate the goal of attracting attorneys of color.”
TCDIP has indefinitely tabled Maslon’s application to join. It is unclear at present whether the question of the firm’s admission will be taken up in the future.
Minneapolis attorney Terri Krivosha, the chair of Maslon’s governance committee, told Minnesota Lawyer that she was “flabbergasted” by the opposition to Maslon’s admission.
“Like many law firms, diversity is a very important issue to us,” she said. “It was very sad to me that in a legal community this small we couldn’t find a way to work together.”
Krivosha also said that she was dismayed that the group would hold off Maslon’s application over the firm’s decision to provide representation to a particular client — “the very underpinning of what we as lawyers do.”
The article describes a meeting between Krivosha and four members of the TCDIP Board.
As far as Krivosha is aware, no other law firm has been asked to go through such a process. The firm has had no contact with the group since the application was tabled in April, she said.
In an interview with Minnesota Lawyer last week, Leung said that the question of membership criteria had never been raised until Maslon applied for membership. The firm’s application sparked a great deal of debate and led to the development of a committee to study the issue, which has not made a final report, said Leung. One of the issues the committee will address will be whether a firm’s clients should be a factor in admitting the firm to the group.
Leung emphasized that TCDIP has done a lot of hard work to recruit minority lawyers and law students to Minnesota — a fact that he hopes does not get lost in the controversy over Maslon’s application.
The article discusses a proposed set of criteria for membership in TCDIP, including not taking cases contrary to the group's mission. MABL also is quoted in the article listing challenges to recruitment of minority attorneys, which the membership of Maslon supposedly exacerbate.
David Herr, one of the Maslon lawyers who represented the plaintiffs in the affirmative-action cases, took issue with the suggestion that TCDIP influence the cases its members accept.
“It strikes me as wholly inappropriate that an organization of lawyers would expect lawyers or law firms not to provide legal services to clients in need, regardless of the popularity or unpopularity of their cause,” Herr said. “That’s not the way our profession is supposed to work.”
Blackwell said that MABL’s concern in the matter is with protecting TCDIP’s mission. Because of Maslon’s close association with the Grutter and Gratz cases, attorneys of color across the country have become aware of the firm, viewing it as unfriendly to them because of its work, he maintained.
“There is a perception that a law firm that takes these kinds of pro bono cases is not in favor of diversity,” Blackwell stated. Since TCDIP is a fledgling organization, it is particularly important that it guard its reputation, he added.
I have many thoughts on this issue:
1. To learn more about MABL, take a look at this invitation to its recent "Shrimp Boil." Of note is the statement as to who is and is not welcome at the event.
2. I have friends at Maslon, so I will pull some of my punches. It is fair to say that Maslon Edelman resisted publicizing the affirmative action case until 2003, when it was on its way to the U.S. Supreme Court. Attorneys for the firm were handling a very prominent case, but the pre-2003 coverage was mostly limited to media in Detroit and Ann Arbor. At the time, the firm website mentioned the case, but was vague about which side Maslon attorneys were representing. Even David Herr's current biography is unclear which side he was on. Note that the "Cases and Transactions" section ordinarily lists whether he was counsel for the plaintiff, appellant, etc. But the Michigan case is described merely as "two companion civil rights actions."
3. This is not the first time that Maslon Edelman attorneys have been walking a tightrope. David Herr was counsel for the Minnesota State Bar Association when it petitioned the Minnesota Supreme Court to require all lawyers to attend sensitivity training classes. More on that issue here and here. I had dinner with Kirk Kolbo, David Herr, and Larry Purdy around 2001, when the three of them were handling the case through the appellate stages. I never asked Herr how he reconciled his handling of the sensitivity training petition with his representation of affirmative action opponents.
4. In another context, I stated that "attorneys who take on constitutional cases at great risk to their careers should be honored, rather than demonized." I stand by that sentiment.
5. A press release from the Center for Individual Rights (which sponsored the litigation) notes that not all Maslon attorneys agree with the affirmative action litigation:
Kolbo persuaded his firm's chair, the prominent appellate lawyer David Herr, to join him in the University of Michigan case.A Star Tribune article (1/11/03) stated it this way:
"If you polled the lawyers in our firm, you'd find some are not in favor of our position," Kolbo says. "But the policy here is that we can pursue pro bono cases as long as there are no conflicts of interest."
For decades, the Minneapolis law firm of Maslon Edelman Borman & Brand has been home to liberal attorneys who largely are free to do volunteer legal work for pet causes.
It was on donated time in the 1970s that the firm's Chad Quaintance spearheaded the suit that won the desegregation of Minneapolis' public schools.
Now Maslon Edelman's relaxed pro bono policy has put the firm's covey of more conservative lawyers in the middle of the biggest case before the U.S. Supreme Court this term.
6. One of the justifications for upholding the Michigan Law School's affirmative action program was the assertion that not all minorities think alike. According to the Michigan defendants, if the law school has enough minorities (the so-called "critical mass"), then the differing opinions of the minorities will help demonstrate the wide range of opinion within a given race. If we are to believe this rationalization, then wouldn't TCDIP want to have Maslon Edelman join its group in order to attract those minorities who actually agreed with the plaintiffs in the Michigan cases? It seems that they are not really interested in recruiting and retaining all minority lawyers -- just the ones with the proper attitudes.
7. Will the organized bar be up in arms about this? Or will political correctness prevail?
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