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December 8, 2011 8:00 AM

As Threatened, Advocacy Group's Ranking of LGBT–Friendly Employers Slaps Foley

Posted by Tom Huddleston Jr.

The Human Rights Campaign—the country's largest lesbian, gay, bisexual, and transgender advocacy group—released its 2012 Corporate Equality Index on Thursday, and dozens of law firms earned the group's highest possible score for their LGBT–friendly policies.

This year's version of HRC's annual survey rates 850 employers across 38 industries on a scale of 0 to 100. To arrive at its ratings, the group considered such criteria as whether employers have official nondiscrimination policies, provide insurance coverage for same-sex partners, and are actively engaged with the LGBT community.

Of the 139 law firms rated—134 of them Am Law 200 firms—55 received perfect scores and another 44 received scores of 90. (Because HRC changed its survey criteria this year, comparisons to past years' scores can be misleading.)

Foley & Lardner, one of six Am Law firms to achieve a score of 60, was among those to fall below the survey's upper echelon. In Foley's case, the low rating makes good on a warning HRC issued publicly to the firm last month as a result of Washington, D.C.–based campaign finance partner Cleta Mitchell's work on behalf of the National Organization for Marriage (NOM), an antigay marriage group.

On November 8, HRC released a letter addressed to Foley chairman Jay Rothman in which it criticized the firm for representing NOM and another group with a similar agenda, Stand for Marriage D.C., in their respective bids to thwart efforts in Minnesota and Washington, D.C., to legalize gay marriage.

The HRC letter characterized Foley—which received a perfect score on the group's 2010 survey—as having turned its back on its own history as a result of Mitchell's work for the two antigay marriage groups. (The Foley Web site features extensive information about the firm's commitment to diversity, including its support of LGBT attorneys.)

In addition to stating in the letter that Foley was in line to receive a score of 60 on the 2012 CEI, HRC president Joe Solmonese also warned that his group planned to begin contacting Foley clients to highlight the firm's work on behalf of same-sex marriage foes.

The threat is reminiscent of one the group made against King & Spalding earlier this year after then-partner Paul Clement agreed to represent the House of Representatives as a client in litigation over section 3 of the Defense of Marriage Act (DoMA).

Pressure exerted on King & Spalding by HRC and other gay rights advocates led K&S to abandon the controversial assignment. Clement subsequently left King & Spalding to join the Bancroft law firm. Now, it appears, HRC aims to pursue the same strategy against Foley as a result of Mitchell's work for NOM, which opposes state-level same-sex marriage legislation across the country. (The group's chairman, John Eastman, is a former Kirkland & Ellis attorney.)

While Mitchell isn't as high-profile a figure as Clement, her history of representing same-sex marriage foes has clearly put her firm, and Foley, in HRC's crosshairs. 

"Moving forward," Solmonese wrote in the November 8 letter, "we consider it our responsibility to advise corporate counsel and law students committed to diversity of Foley & Lardner's continued representation of anti-LGBT organizations and its current legislative advocacy on behalf of NOM."

In an e-mailed statement, a Foley spokeswoman stressed that the firm has a track record of supporting the LGBT community and supports HRC's work to do the same.

"As lawyers, however, we have an ethical and professional obligation to advocate zealously the legal positions of our clients," the statement said. "Our lawyers and clients undoubtedly hold divergent views on any number of issues. As a firm, we do not foreclose representation of clients who seek to advocate a controversial or unpopular viewpoint, even if that viewpoint deviates from or conflicts with the firm's institutional or internal position. Contrary to the stance taken by the HRC, the notion that a client's views and interests may be attributed to its law firm is antithetical to the fundamental precepts of the American system of justice and is a notion that we soundly reject."

Contacted several times over the past month, Mitchell said via e-mail that she could not comment prior to The Am Law Daily's deadline. Foley's chief diversity partner, Maureen McGinnity, did not respond to a request for comment, nor did partners John "Jack" Lord, Jr., and Eileen Ridley, cochairs of the firm's LGBT Affinity Group.

HRC spokesman Paul Guequierre says the group has not yet begun contacting Foley's clients and recruits, but that if the firm does not drop NOM as a client, "then we need to let the public know what sort of clients [Foley is] working for."

When HRC used the tactic against King & Spalding, conservative critics questioned the group's principles. At the time, HRC's vice president for communications and marketing, Fred Sainz, told The Washington Post that the group did not ask King & Spalding clients to sever ties with the firm, and simply informed them that HRC felt its defense of DoMA did not mesh with the claims of being a champion of diversity contained in the firm's marketing materials.

Mitchell, a partner in Foley's Washington, D.C., office since the firm absorbed her former firm, Sullivan & Mitchell, in 2001, registered as a lobbyist on behalf of NOM in October in Minnesota, where the group is preparing for a statewide vote next year on a same-sex marriage amendment.

This is not the first time her work has drawn HRC's ire.

According to Solmonese's letter, Foley was an HRC corporate partner until 2009. At that point, the group clashed with the firm over Mitchell's representation of Stand for Marriage D.C. in a lawsuit against the Washington, D.C., elections board that attempted to force a referendum on the same-sex marriage issue after the city passed a law legalizing such marriages in December 2009. (Solmonese said in his letter that Foley has not responded to the CEI survey for the past two years.)

Mitchell is a National Rifle Association board member and has handled election law matters for such Republican politicians as Tea Party favorites Sharron Angle (in her unsuccessful bid to unseat U.S. Senate majority leader Harry Reid) and U.S. senator Jim DeMint of South Carolina. In a 2010 Wall Street Journal profile, conservative pundit George Will described Mitchell as "the most important Washington conservative not in public office."

(She does have a sense of humor, as shown in this 2004 Daily Show clip that finds her discussing the blurry parameters for what statements are acceptable in 527 groups' political attack ads.)

Scott Fredericksen, the managing partner of Foley's D.C. office, told the WSJ that he has heard other partners at the firm complain about Mitchell's activities. Such clashes among partners aren't surprising, Fredericksen told the paper, adding that "diversity means diversity." Fredericksen, too, did not respond to requests for comment.

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This is becoming a little McCarthy-esque. What's next? Attacking criminal defense firms for taking certain clients? And the notion of a "perfect score" is silly. As is the requirement that a firm "engage with the LGHBT" community. In their spare time?

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