Big Law Brings The Receipts
/One thing about working in a law firm of any size is that there are internal emails about more than just cases and clients. There are emails about internal business matters. There are in-jokes between colleagues. There are emails about mundane trivialities too minor to list off. There are, in short, all sorts of things. Attorneys may save client-related or case-related emails to varying degrees, but what about the rest? While they are probably never given a second thought, the internet, as they say, is forever.
That brings me to a recent news item about two attorneys (John Barber and Jeff Ranen) who were among a group of partners that this spring left the Los Angeles office of the law firm of Lewis Brisbois Bisgaard & Smith, an AmLaw 100 firm with offices in most of the 50 United States, to form their own firm. Various reports put the number of Lewis Brisbois lawyers who departed with Barber and Ranen at between 110 and 140. While that’s not even 10% of the attorneys at Lewis Brisbois, it seems that most of the departures were from the firm’s California offices. In this fawning Bloomberg Law piece, Jeff Ranen outlined ambitious plans for his new firm’s growth, aiming to have 300 attorneys nationwide in three years. Bloomberg quoted a legal recruiter regarding the challenges for growth the new firm would face: “[t]hey don’t have a name brand yet and they’re going to have to educate people in the market.”
It seems as though Lewis Brisbois had some thoughts on what the new firm’s brand ought to be.
After Barber and Ranen left, Lewis Brisbois said a complaint was lodged against them, and an investigation followed. The investigation revealed emails between the two displaying the full range of offensive comments: racist, anti-Semitic, misogynistic, and homophobic. How does the world now know about this internal Lewis Brisbois investigation? Apparently, Lewis Brisbois disclosed the results – including redacted emails – to the New York Post. As you do.
As to those results: let’s just say: “WOW.” There is nothing subtle about the emails in question. The N-word, the C-word, and the F-word are all involved. Forward, an independent Jewish newspaper, reported on internal emails between Ranen and Barber that are unmistakably anti-Semitic.
This was an absolutely cold-blooded move by Lewis Brisbois that could make the Barber Ranen firm radioactive, to say nothing of the two founding partners. What must those 100+ lawyers who left Lewis Brisbois to join Barber Ranen be thinking now? Did they know? Did Lewis Brisbois know, and for how long did they know? After all, it’s a little strange that after Barber and Ranen leave, a “complaint” is filed against them. Stranger still, the results of an internal investigation are publicized in this manner.
Do Barber and Ranen have any recourse here? It would be difficult to claim that having your own emails published constitutes defamation, no matter what damage the emails do to your reputation. Assuming these emails are authentic, they are Barber and Ranen’s own words; their own slurs. Generally speaking, Barber and Ranen could not make any claim of confidentiality or ownership of these emails. Doubtless somewhere, buried in the Lewis Brisbois employee handbook or its rules and regulations are words to the effect that computers and email accounts are to be used for business purposes only and all content created thereunder is owned by the firm. One possible theory to pursue would be tortious interference with prospective business advantage if these revelations cause clients to cease or decline to do business with the Barber Ranen firm. That claim, boiled down to its essence, involves the commission of some wrongful act designed to prevent a third party from entering into a business relationship with the targeted person or firm. There would be a lot to argue about in the context of such a claim just based on what has been reported publicly.
However, let’s not lose the forest for the trees here: Barber and Ranen’s argument would be, “you exposed us as people who say abhorrent, bigoted things, which caused our clients to disassociate themselves from us.” That’s not exactly a winning message, especially in front of a California jury.
In any event, this is a fascinating peek behind the curtain, and an interesting strategy by Lewis Brisbois to strike back at departing lawyers. Unfortunately, I doubt very seriously that Barber and Ranen are the only lawyers with skeletons in their email closets across the legal profession. I wonder, before making these matters public, did Lewis Brisbois ensure these were the only two out of their 1700 lawyers who put such language in emails?
Generally, ethical rules preclude noncompetition agreements from binding lawyers. While “tradition” once kept lawyers in one firm, the mobility of lawyers has been a reality for lawyers for at least the last two decades. Does this incident mean law firms are willing to resort to new tactics to prevent lawyers from leaving (or kneecap them if they do). More to the point, if a law firm gets wind that a lawyer is leaving, will they go combing through his or her emails to see what it can find? As the lawyer announces its departure to the managing partner, will the managing partner say, “do the names Barber and Ranen mean anything to you?” Too early to tell, obviously, what this situation means, if anything at all. It will be interesting to see what happens and how it all plays out.
UPDATE (June 6, 2023): Well, that didn’t take long. Barber and Ranen are resigning from the firm they just formed at the request of the firm CEO. It sounds like the firm is going to firm another, different firm without Barber and Ranen. The two sound like they’re going to slink away to work on themselves. They issued a statement assuring the public that the words in their emails to each other, sent in moments of unguarded candor, do not reflect what is really in their hearts. Um hm. Anyway, I’m still wondering if we’ll see anything like this happen again as lawyers leave their firms. Time will tell.
