Big Law's Tantrum at its Lawyers' Success

Last week, former Solicitor General under the Bush Administration Paul Clement and Erin Murphy, his long-time colleague from the Solicitor General's office and in private practice, achieved perhaps the most significant victory at the Supreme Court under the Second Amendment in recent history.  The two successfully convinced the Supreme Court in New York State Rifle & Pistol Association v. Bruen to strike down New York's requirement that individuals must show "proper cause" before being able to obtain a concealed carry weapons permit. 

Yet after Clement and Murphy won at the Supreme Court in this historic decision, the two almost immediately resigned from Kirkland and Ellis, LLP, the world's top law firm in which both were partners.  While this may come as a surprise, strife between Kirkland and Ellis and the dynamic duo shows this decision was inevitable

In his resignation letter, Clement explained that the firm told him and Murphy that they needed to either drop out of existing representation of gun litigation clients or leave the firm. Clement and Murphy considered it wrong to drop their clients just because some of the legal establishment did not like the clients. In turn, the two [] resigned and announced they will start their own firm.


Let's be clear, the Supreme Court's decision was a home run.  The Court emphasized that the Second Amendment is no less important than the First Amendment, or the Sixth Amendment for that matter, and specifically held that the right to self-defense is not limited to a person's home but may be properly exercised outside the home.  In writing for the majority, Justice Thomas made it clear: "We know of no other constitutional right that an individual may exercise only after demonstrating to government officials some special need.” 

One might think a comprehensive legal victory like this in the United States Supreme Court in defense of a core fundamental right would lead to plaudits and congratulations all-around at the law firm, and indeed, for Clement and Murphy, this has been the case in the past.  But this time, Clement and Murphy were given a choice by Kirkland and Ellis: stop representing gun clients or leave the firm.  As the two explained in an op-ed in the Wall Street Journal announcing their decision to push back against Kirkland and Ellis' censorship: 

After we prevail before the high court, we generally receive a round of congratulatory messages from law-firm colleagues for a job well done, especially when we have helped our clients vindicate their fundamental constitutional rights.

This time around, we received a very different message from our law firm. Having just secured a landmark decision vindicating our clients’ constitutional Second Amendment rights in New York State Rifle & Pistol Association v. Bruen, we were presented with a stark choice—withdraw from representing them or withdraw from the firm. There was only one choice: We couldn’t abandon our clients simply because their positions are unpopular in some circles.

This isn't the first time Clement has left a firm over a conviction to defend what is right, not what is popular.  Clement resigned from King and Spalding in 2011, his former firm, when it objected to his legal representation to preserve the Defense of Marriage Act.  

This isn’t the first time we have left a firm to stick by a client. What makes this circumstance different is that the firm approved our representation of these clients years ago, and dropping them would cost the clients years of institutional memory. More remarkable still, in one of the cases we were asked to drop, we prevailed in the Supreme Court on Thursday. Those who object to the representation are thus taking issue with the Constitution as interpreted by a majority of the high court.

In the face of the forces allied against them, Clement and Murphy chose to stick with their clients, recognizing that the

adversarial system of justice depends on the representation of controversial clients, no matter which side has most of big law rooting for it. Many of our fundamental constitutional guarantees are designed to be counter-majoritarian . . . .But the solution isn’t to fire clients who have just vindicated a fundamental constitutional right. We are sticking with our clients.

It is clear that for Paul Clement and Erin Murphy, doing the right thing is more important than doing the popular thing.  The RNLA applauds their willingness to stand up for their clients and to push back against corporate censorship.