By Quentin Langley
In criminal cases even the most egregious offenders are entitled to legal representation. No such rule covers civil cases, but, nonetheless, even the most unpopular causes can generally find lawyers. The case against gay marriage in the US Supreme Court certainly has lawyers, but the New York Times is reporting that top firms will not represent this case.
Why should this be the case? Gay marriage is still a divisive issue in the US with substantial numbers opposing it. That's certainly a minority position, but it is no less popular than support for gay marriage was just a few years ago. When support for gay marriage was a minority position - not only nationwide, but in liberal states such as California and Washington - there was no difficulty hiring top lawyers to represent it. For example, Ted Olson, widely considered one of the finest Supreme Court lawyers, and Solicitor General in George W Bush's first administration, was lead attorney.
Representing unpopular causes can certainly cost a law firm clients, but why is this cause in particular so difficult? Across the US (though varying greatly from state to state) public opinion favours gay marriage about 60:40. As recently as 2009 it was the other way round, and President Barack Obama is among those who has changed his mind since then. A few years earlier even liberal states were voting decisively against the proposition yet lawyers were keen to take the case.
The answer probably lies in the age profile of support for gay marriage. Some 78% of 18-29 year-olds support gay marriage and only 33% of those 65 and older. That might seem to suggest that law firms would be more wary of the case for gay marriage. Younger people are much less likely to bring large corporate clients to a firm. But against that are two more powerful factors. The trend is clearly in favour of support. Lawyers may not want to represent a position that is unpopular now and is likely to be even more unpopular in a few years time. But perhaps, most fundamentally, law firms need to recruit top graduates.
Marketing advisers and academics sometimes focus a little too much on customers as a driving force of business decisions. But there are other publics on which an organisation depends to survive: investors, politicians and regulators, and staff. A law firm that can't recruit the best graduates from the top law schools will face critical problems a few years down the line.
When Shell faced the twin crises of Brent Spar and Nigeria in the 90s it was feedback from graduate recruitment fairs that prompted the group leadership to act. Disney has long granted partnership benefits to gay employees not because its customer base - families with young children - includes large numbers of gay people but because it recruits singers and dancers from Broadway and Hollywood.
Being able to recruit top talent is critical to the future of an organisation. Organisations recognise this, but sometimes media coverage and academic study overlook it.
Thinking long term helps companies. Many organizations have stopped thinking long term because here and now they will lose business, but if you look ahead you find that lost revenue now gets made up more than twice over if you think long term.
Posted by: Lilli Haicken | 04/17/2015 at 03:27 PM