Crisis communications in the wake of affirmative action lawsuits

By Gina Rubel

Affirmative action decisions became a significant concern for law firms and their clients after the U.S. Supreme Court on June 29, 2023, struck down race-based college admissions, also known as affirmative action, stating that race cannot be a determining factor. The decision effectively overturned more than four decades of rulings and has become a catalyst for the escalation of lawsuits against law firms and other entities.

Law firm leaders, administrators, and legal marketers must understand how these rulings affect firms and be prepared to provide guidance to clients about the implications of these decisions. On July 17, 2023, Sen. Tom Cotton, a Republican from Arkansas, sent letters to 51 large law firms threatening investigations and litigation if those firms continued to advise clients on Diversity, Equity and Inclusion (DEI) programs and for maintaining such programs in their own law firms. The focus of the potential investigations has largely been directed toward diversity fellowships. Therefore, it is essential for law firms to ensure that their program language, which is found on firm websites, press releases, social media and recruitment materials, aligns with the law while continuing to support DEI efforts.

Activist Edward Blum, known for his lawsuit against Harvard on affirmative action, has now turned his attention to law firms.

On Aug. 22, 2023, the first two law firms to face suits were Morrison Foerster and Perkins Coie. The following day, the Association of Law Firm Diversity Professionals (ALFDP) responded saying, “We stand united against any attempt to discredit these initiatives.” ALFDP in July had encouraged law firms to remain committed to their DEI efforts.

The situation continued to develop rapidly. On Aug. 25, 2023, the American Bar Association (ABA) issued a statement from its president, Mary Smith, which said:

“Goal III of the ABA calls for the elimination of bias and enhancement of diversity. We stand committed to the promotion of full and equal participation in the association, our profession, and the justice system by all persons.

In the wake of the Supreme Court decision in Students for Fair Admissions v. Harvard, the legal profession needs to review its programs and identify ways to comply with the law while promoting diversity, inclusion and equity in the legal profession. Now is the time for law firms, law schools and employers to rededicate themselves to creating a more diverse and inclusive environment.”

The legal actions taken against Morrison Foerster and Perkins Coie were eventually retracted after both firms modified the parameters of their diversity scholarships, making them indifferent to race.

Since then, letters from the American Alliance for Equal Rights (AAER) threatening similar lawsuits were sent to Winston & Strawn LLP, Hunton Andrews Kurth LLP, Adams and Reese LLP, Fox Rothschild and Susman Godfrey. Adams and Reese immediately ended their 1L minority fellowship program. Winston & Strawn affirmed its commitment to continuing the 1L diversity fellowship program, and it was subsequently sued on Oct. 30, 2023.

Law firms are dealing with a unique conundrum in the face of heightened risk and the higher cost of pursuing DEI initiatives. In addition, they must mitigate their own DEI legal risks while helping clients work through these challenges and harness the benefits of DEI. This situation requires law firm leaders, administrators, and legal marketers to be well-versed in the issues, understand the big picture, have a crisis plan in place, and be ready to navigate the complexities the SCOTUS decision has created.

Managing a crisis 

The first step towards crisis management is preparation.

Step 1: Crisis response team: Establish a crisis response team that’s ready to act at a moment’s notice. The team should consist of individuals from diverse departments including management, executive personnel, and strategic executive committee members. It should also include your general and outside counsel, legal marketing and communications team, HR and recruitment, and your external PR agency.

Define roles and responsibilities for the crisis response team, including who will monitor the situation and how they will report internally. Ensure there are protocols in place for internal communication, keeping in mind that they could potentially get subpoenaed in the event of a lawsuit.

Step 2: Scenario planning: In your crisis plan, include a dedicated section for possible scenarios that outline the issues, propose solutions, timings, a target audience, and the key messages. Even if a DEI lawsuit has not yet hit your law firm, anticipate one and prepare draft responses in advance. This way, you’re not caught off guard if a lawsuit is filed.

A legal risk mitigation tactic that some firms have taken is to adapt the language of their diversity initiatives to avoid explicit mention of specific groups. This isn’t about moving away from DEI efforts but rather being cautious about the language used.

In addition, ensure that the firm’s promotional materials, press releases, social media posts, and recruitment documents don’t contain anything that could open the firm to risk. Being proactive in this regard is crucial. If you haven’t already, examine your firm’s materials to identify any language that could be questioned because of the SCOTUS ruling.

Step 3: Policy review: Review your existing policies as part of crisis planning. Key policies that are often overlooked but crucial in the face of a crisis are communications and media policies, insurance policies, personnel policies, and social media policies.

Step 4: Draft the crisis response plan: When it comes to managing crisis responses, consider these key points. It’s crucial to identify who oversees crisis response, what the potential issues and impacts might be, and the legal and ethical implications. This applies to all crisis scenarios, including affirmative action lawsuits. Questions to consider may also include:

• Does evidence need to be preserved?
• Who maintains privilege?
• How can damage be limited or mitigated?
• What is the protocol for notification (if any)?
• When should action be taken?
• What is the best possible outcome for the firm in this situation?

Let’s use the example of a lawsuit. In such a situation, the crisis response plan is typically overseen by the general counsel or the DEI chair of the firm. The potential issues and impacts typically involve employee and client retention, acquisition, and the firm’s reputation. Legal matters could include violation of the SCOTUS ruling, preservation of evidence, and maintaining privilege.

To restrict or limit damage, response handling is key. Notification and timing of action depend on your team’s protocols and who was served. It’s also essential to understand your outside counsel’s policies regarding media interaction and the requirements of your insurance policy in the event of the firm being sued.

Decide in advance what the firm’s stance is, how you want to present it, and consider potential manipulation of your messages. All these points need to be defined and agreed upon in advance. For instance, if you are sued, your response could be similar to Winston & Strawn’s statement, which was strong, legal, and compliant. They said:

“We are proud of the program and note that your statement that it ‘excludes certain applicants based on race’ is simply false. Applicants of all races, ethnicities, socio-economic orientations and all other backgrounds are eligible and encouraged to apply. Note that your implication that the terms ‘disadvantaged’ and ‘historically underrepresented’ necessarily refer to race is baseless. Winston & Strawn does not make employment decisions on the basis of race or ethnicity. Our program is appropriate, legal and compliant and it will continue.”

Your firm’s response heavily depends on the firm’s culture and the specific circumstances of the lawsuit. Preparation is key and drafting a response in advance, tailored to the firm’s culture and potential scenarios, can be invaluable in a crisis situation.

Step 5: Media monitoring and messaging: It is crucial for your law firm to have a robust media monitoring strategy in place, keeping abreast of what is being said about the firm. A well-prepared response plan should be in place to address any potential lawsuits, and how you’ll manage client inquiries and perceptions. For instance, your clients may support the SCOTUS decision, which could lead to questions about your firm’s stance. Hence, being well-prepared to respond to such inquiries is essential.

Step 6: Training and preparation: Crisis management requires internal training and preparation. Conducting simulations, like how to handle a hypothetical lawsuit, is beneficial. These tabletop exercises help the team understand the process, evaluate risks, and plan the course of action. It’s important to remember that the spokesperson for the firm doesn’t always have to be the top person in charge. It depends on the situation and the nature of the lawsuit.

Step 7: Plan implementation: When a crisis occurs, implement your plan, determine who should respond and how, and monitor the response from the public, which could include employees, clients or the media. The aim is to eventually achieve recovery, asking yourself whether publicity is in your best interest or not. Throughout the process, ensure consistency in your brand’s messaging.

Recovery involves evaluating, updating, and refining your plans, and retraining people. Each lawsuit is different, but the scenarios are often similar. It’s crucial to continuously review and update your firm’s commitment to diversity. Clients still want to see your diversity numbers, and it’s important to maintain a focus on diversity in your firm.

Moving forward

Take the following steps to reaffirm your firm’s commitment to diversity: make a public statement, review policies and programs and update them, if necessary, conduct training and education sessions, set measurable goals, and track progress, and encourage open dialogue within your firm. Be mindful of language changes and how they could be perceived within your firm.

Remember, actions speak louder than words.

Gina Rubel is the CEO and general counsel of Furia Rubel Communications. She educates professionals on devising and implementing strategic communications plans to manage their reputation, develop and attract top talent, and drive business success. She is the host of On Record PR. Gina can be reached on LinkedIn at in/ginafuriarubel/.