Monday, August 28, 2006

Black, White, and Red-Handed

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.

"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."
A Star Tribune article (1/11/03) stated it this way:

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?

Update: Check out the comments below for further info. Welcome Powerline readers! Read the rest of SwanBlog by clicking here.


Blogger Pyrthroes said...

Why, yes: Political Correctness (PCBS) will prevail. Your question answers itself.

August 29, 2006 7:27 AM  
Blogger joated said...

MABL shrimp boil:

social for attorneys of color

Yep. They sure do believe in diversity.


August 29, 2006 7:44 AM  
Blogger Peter said...

Read a couple lines further...

"No other guests, please."

August 29, 2006 7:51 AM  
Anonymous Anonymous said...

Same guys that would fight to the last nickel to fight segregation in schools and country clubs... of course when they do it... no big deal.

I'd have loved to see a few asian or hispanic 'minorities' crash that party and gauge if all minorities are equal in their eyes.

August 29, 2006 10:50 AM  
Blogger vnjagvet said...

A classic of "diversity for me but not for thee".

To someone like me, a transplanted Atlanta lawyer who knows virtually nothing about law practice in the Twin Cities, it appears that Maslon has true diversity in its politics.

In my experience, a firm handling both "liberal" "conservative" pro bono cases is a good place to practice law. A place that welcomes diversity of views generally welcomes lawyers from a variety of races and backgrounds.

If a firm was in the forefront of breaking down de facto segregation in its community, why isn't this something for african american lawyers to celebrate?

Jerry Blackwell needs to get his head on straight if he is going to be a leader in the "minority" bar.

He should start by buying Juan Williams' latest book and reading it from cover to cover.

Then he might call Burrell Ellis, a DeKalb County Georgia Commissioner, Partner at Epstein Becker and Green's Atlanta office and prominent community leader, or Ray Persons, a litigation partner at King & Spalding, Atlanta's largest lawfirm. Tell both of them that I suggested he call for some heart to heart advice.

They can set him straight.

August 29, 2006 11:01 AM  
Blogger Howard said...

Ho hum another Left/liberal log of hypocrisy tossed onto the raging fire of distruction that the Left has become. It has gotten so bad that any time I see some "cause" I just assume it is not what it appears to be. I can only hope the Left implodes soon and that perhaps what used to be honesty returns.pcw

August 29, 2006 11:59 AM  
Blogger redleg said...

Only persons of color invited. If it were the opposite, there would be nothing else in the news. I guess if you are black, being racist is not only permitted, but encouraged.

August 29, 2006 12:37 PM  
Anonymous Anonymous said...

Will Political Correctness prevail? Ask the Boy Scouts!

August 29, 2006 1:03 PM  
Blogger Bill Gilles said...

I think the most intriguing thing here is the further evidence that the 'left' no longer seeks to be a player in the market place of ideas - but rather a fascist imposer of its morals, ideas, and virtues. On the environmental front you see this with Al Gore et al declaring that the debate on Global Warming is over. On this issue in diversityville, its pretty much the same old same old "Brown, but not BROWN" argument.

I'm curious where this puts liberal groups like the ACLU who's client list includes the Klan, Neo-Nazis and Rush Limbaugh.

August 29, 2006 3:09 PM  
Anonymous Anonymous said...

No one noticed that this event is being held on public property.

Aren't there laws in Minnesota against public property used for discriminatory purposes? I'm pretty sure there were even when I attended grad school there in the 70's.

August 29, 2006 3:46 PM  
Anonymous Lexingtonian said...

Will the organized bar be up in arms? Of course not - the organized bar, aside from the organization known as The Federalist Society, is merely an arm of the Left. And the Left brooks no divergence from equal outcomes or racial quotas.

August 29, 2006 5:20 PM  
Anonymous Zeb Quinn said...

MABL has taken it down and postponed their event. I'd like to believe that they've realized the error of their ways.

August 29, 2006 8:17 PM  
Anonymous Anonymous said...

There is irony here too. The menu at this gathering is described as an "authentic Cajun" shrimp boil. The Cajuns are French speaking whites who are descendants of those who migrated to SW Louisiana and SE Texas from Canada. The name "Cajun" is a derivation of the word "Acadian" which was related to the part of Canada from which the Cajuns originated.

I think people should be able to eat whatever they want where they want, but this is the equivalent of an exclusive, whites-only gathering at which soul food is served.

I wonder if the hosts even realized how weirdly ironic this menu was. I'm guessing they had no idea.

August 29, 2006 11:51 PM  
Anonymous Anonymous said...

To "anonymous" who asked whether Hispanics or Asians would be welcome at the Shrimp Boil:

Here is the MABL website as it existed in 1999. You will note that the Minnesota Minority Lawyers Association is defunct. The "multi-race" concept gave way to groups like MABL.


Welcome to the Minnesota Association of Black Lawyers


Although the date of adoption on the current Articles of Incorporation of the Minnesota Association of Black Lawyers (MABL) is July 18, 1995, tracing the evolution of today's MABL will take you back more than 25 years to the late 1960's. It was 1969 when the idea was born amid the informal lunch gatherings of a small group of Black attorneys in Minneapolis. In 1971, a slightly larger group of Black attorneys gathered at the home of law professor Joyce Hughes to coin the MABL acronym (the fact that it sounds like "Mabel" was no accident) and formally organize the first Minnesota bar association to focus on the issues facing Black lawyers and the Black communities of the Twin Cities.

During those early years, there were fewer than 20 Black attorneys in the State of Minnesota. There were only two Black judges, William Posten in Minneapolis and Stephen Maxwell in St. Paul. Both judges declined to join the newly formed organization, primarily because of the possible conflict posed by a potentially active MABL. Ultimately, sustaining the organization's operations with such a small membership proved to be difficult and MABL became inactive in 1974.

The need to address the special issues encountered by Black attorneys, other attorneys of color and minority communities, of course, did not disappear. As the number of attorneys of color in the Twin Cities steadily increased throughout the 1970's, the challenges, such as the 1978 Supreme Court decision in Bakke* reducing the scope of affirmative action programs, also grew. "Old" members of MABL and some of the relatively new attorneys of color met to create a new bar association. These Asian, Black and Hispanic attorneys recognized the greater potential they would have by banning together to form a single minority bar association. A task force set to work and created the Minnesota Minority Lawyers Association, which was formally incorporated on September 23, 1980. MMLA's first president was Marvin Roger Anderson.

MMLA, nurtured by a dedicated core of worker bees, developed new programs and tackled numerous issues not addressed by the long-established state and local bar associations. For example, MMLA and its members conducted unique CLE programs, set up its own bar review course, issued a directory, challenged inequity (such as the failure of major firms to hire and promote attorneys of color and the treatment of law professor Andrew Haines), cosponsored programs with other bar associations, affiliated with the NBA, published a newsletter, served on the Governor's Merit Selection Committee on Judicial Appointments, held an annual gala dinner dance and established a scholarship program. The organization grew to well over 100 members. However, by the mid 1990's the multi-race concept upon which MMLA was built gave way to smaller, separate bar associations focused on the issues confronted by each race.

This led to MABL's re-establishment in 1995. The first president of this latest edition of MABL was Jerry W. Blackwell. Included among the many purposes of MABL are plans to promote and support the professional development of Black lawyers in Minnesota, the education of Black students desiring to enter the legal profession and the education of Black citizens regarding the American legal system. MABL got off to a rousing start with its first Gala Dinner Dance in 1996 and, in 1997, by bringing the National Bar Association's Annual Convention, for the first time in history, to the Twin Cities.

By Ronald E. Hunter

*University of California Regents v. Bakke, 438 U.S. 265 (1978)

August 30, 2006 6:12 AM  
Blogger Pogo said...

Great post.
The attempt to shun and blackball this firm should be exposed for the dishonest and corrupt tactic it is.

The Cajun event is classic.
No whites, no Jews, no Asians.
Just the right sort of people need apply. My white brother is married to a black woman. I wonder if he can go?

PC uber alles.

August 30, 2006 8:11 AM  
Blogger Peter said...

From an "anonymous" commenter:

"[A] lawyer's decision to represent a client may commit that lawyer to zealously furthering the interests of one whom the lawyer or others in the community believe to be morally repugnant. For that reason, the question of whether to represent a particular client can present the lawyer with an important moral decision - a decision for which the lawyer can properly be held morally accountable, in the sense of being under a burden of public justification.

That would not be so if each lawyer were ethically bound to represent every client seeking the lawyer's services. If there were no choice, there would be no responsibility. Under both rules and practice, however, lawyers have always been free to choose whether to represent particular clients.* * * [Indeed,] the Comment to Rule 6.2 of the ABA Model Rules of Professional Conduct says * * * that a lawyer ordinarily is 'not obligated to accept a client whose character or cause the lawyer regards as repugnant."'

Morgan and Rotunda, Professional Responsibility, Problems and Materials, pg. 88-89 (Foundation Press, Eighth Ed., 2003) (quoting Professor Monroe Freedman).

ME: We all learn in law school about IRAC: Issue, Rule, Analysis, Conclusion. "Anonymous" just throws up the quote as if to say, "See?" I guess he is trying to say that a lawyer IS responsible for his clients because he has a general freedom to reject clients. No one is forced to represent a client, so we are correct to criticize the Maslon firm.

Without looking at the book, I have a hunch that there is more to the quote.

Even without a larger context to the quotation, "anonymous" misses some important points -- the clients were not personally reprehensible in the way that cross burners and rapists are. The cause was partially successful in that the undergraduate affirmative action policy was overturned. Being uncomfortable with the more blatant quotas of some affirmative action programs is a mainstream, bi-partisan idea. Remember Pres. Clinton's "mend it, don't end it"?

Michigan is likely to pass a referendum ending affirmative action, as California has already done. Even if the wording changes are enough to defeat the Michigan Civil Rights Initiative, it is still a legitimate mainstream idea.

Finally, the FIRM of Maslon Edelman has an open pro bono policy, as long as there is not a conflict of interest. So it is wrong to punish the firm.

September 07, 2006 6:26 PM  

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