Denver Bar Association
May 2003
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Peace Can Mean Conflict in the Office: Lose temper; find justice

by S. Goodsayer

An associate at my firm has been publicly visible in her opposition to the Iraq war. (She has organized and/or attended various anti-war protests and civic meetings and has been interviewed by the local press.) Her efforts have continued since the war began, and she mentioned to me that she has been criticized by some as being unpatriotic. My partners and I have some concern that her actions might be detrimental to our firm. (One of my partners represents a corporation in the defense industry.) Is it ethical for me to ask her to tone down her political activity?

The query supposes that the attorney’s activism may interfere with the firm’s business interests. The facts as related do not warrant that conclusion. Even if they did, the answer to your query would be no.

As described, the attorney’s public advocacy will not directly impact the firm’s clients. (Advocacy against the war is no more likely to impact a defense contractor than advocacy for Medicaid reform is likely to impact a hospital.) If the advocacy were in support of legislation that would have direct negative consequence for a client, then the firm would be obligated to discuss the matter with the client. But even in that circumstance, the firm’s obligation to its clients would not automatically supersede the attorney’s right to influence governmental action as a private citizen.

The issue posed is whether the firm should act to curtail political speech that it believes might be contrary to the client’s political opinions based on concern that the advocacy might anger the client. To the contrary, the firm should encourage the attorney’s public involvement. The firm should never give its clients the impression that its work prevents its members from engaging in public dialogue. In fact, the firm should emphasize to its clients that it expects that each of its attorneys will exercise independent judgment on all matters, and that unless the attorney’s political action appears likely to directly and negatively impact a client, all such political activity will be encouraged.

The firm should be sensitive to the client’s concerns, should the client express them, and consider ways other than curtailing political speech to ensure that the client’s trust in the firm’s integrity and competence is not violated. However, the firm should make clear to all of its clients that it supports the individual exercise of First Amendment expression by its attorneys.

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