Commentary: Ideological discrimination in law firm hiring?

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I am experiencing something very novel for me – internal conflict. The source is an advice column called “The Ethicist” in the New York Times that has the Internet all abuzz.

Here’s the reader’s question: “While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics? NAME WITHHELD, GREENWICH, CONN.”

The Ethicist answered that he may not, concluding, “You must abandon your mini-McCarthyism and cease denying employment to those you deem politically misguided.” An update states that, despite believing all the applicants qualified, the reader recommended rejecting each member of the Federalist Society.

Obviously, a public interest firm can consider the ideology of job candidates. A pro-liberty firm could rightfully treat a Federalist Society affiliation as a plus. And a pro-big-government outfit would have every right to “recycle” any resume listing such an affiliation.

Similarly, a sole practitioner, or small to mid-size for-profit law firm, looking to hire an associate, should be able to do the same. If they specialize in defending clients against the government, of course they will treat the Federalist Society affiliation as a plus; if they specialize in seeking benefits from the taxpayers, of course they will use the resume as toilet paper.

Extending this reasoning further, even a large for-profit law firm should be able to do the same, if their client base is such that the partners believe it is important that associates not just represent the clients, but also have their clients’ interests at heart.

But what of a garden-variety “Big Law” firm, representing a wide array of clients?

My gut feeling is that nothing should be different. The ingrained sole-practitioner instinct says,

“If I’m an owner in a firm, I have the right to support or oppose the hiring of anyone I please, for any or no reason.”

However, I assume that, when a partner is chosen for a big firm’s hiring committee, the fellow partners assume that he will support hiring the best candidates, regardless of the candidates’ affiliations.

And unfortunately, here in Milwaukee, I know of a large firm whose associates won’t join the

Federalist Society chapter for fear of damaging their chances for partnership. I don’t know whether they belonged as law students, but left the affiliation off their resume to improve their chances of being hired in the first place.

But it’s a shame that fellow members of our legal community should feel afraid to join whatever organization they would like.

Ultimately, the only way to resolve this conflict is to look to basic contract principles – what does the firm’s partnership agreement or corporate bylaws say?

If the agreement limits the bases of consideration, then it would be a violation of the trust granted by the fellow partners or shareholders to blackball a prospective associate based on the lawyer’s affiliations.

If this is the case, it doesn’t matter whether it is ethical or not; it’s a breach of duty.

But if there’s nothing in the partnership agreement about it, then I don’t see the problem. If I was on a hiring committee, and my discretion wasn’t limited in any way, I’m sure I would favor candidates who share a pro-liberty ideology. And just as Federalist Society membership would indicate that, membership in many other groups would signal a pro-government ideology that I would consider a big minus.

So, to resolve my internal conflict, I must declare, “Don’t speak to me of ethics; tell me what the contract says.”