ATL reports that a contribution of $5000 to the Yes on 8 campaign (a pro-Proposition 8 group) by an Orrick, Herrington & Sutcliffe partner so enraged Cameron Wolfe, an Orrick of counsel, that Wolfe sent out a firm-wide email:
The publicity attendant to the $5,000 contribution to the Yes on 8 Campaign by an Orrick partner damages the reputation of Orrick as a progressive law firm supportive of equal rights for gay and lesbian people. This can adversely impact the firm in many ways, including hurting our ability to attract gay and lesbian recruits; turning off clients, existing and potential, that support equal rights for homosexuals; and making our current gay and lesbian work force feel like second class citizens.
Chief justice George's eloquent exposition of the reasons why same sex marriage is a right that should be guaranteed to all gay and lesbian people need not be elaborated upon here. Obviously, the partner who made the $5,000 contribution had a right to believe the Chief Justice to be wrong and to make the contribution he did. It can be debated whether he should have foreseen that this action could damage Orrick. What can't be debated is that we should try to counteract the damage that has occurred.
One thing that we as individuals working at the Orrick firm can do is to make personal contributions to the No on 8 Campaign. If enough of us do so, that may be newsworthy enough to generate positive publicity offsetting the present negative impression in the community on this important issue.
Let's call the partner who gave money to Yes on 8 "Mr. Yes on 8." Let's assume a majority of Orrick partners share at least some of Wolfe's views. Take the following pop quiz:
1. Orrick is a general partnership. The governing law is that of a state that has adopted the UPA 1914. There is no provision in the partnership agreement relating to expulsion of a partner. The vast majority of Orrick partners, however, wish to "expel" Yes on 8. A delegation of Orrick partners come to you and ask for your advice on whether they have the power to "expel" Yes on 8--or, as one member of the delegation put it, "otherwise get rid of him"--despite the partnership agreement's silence. Discuss. (Note: Do not discuss the merits of Proposition 8, the merits of firing someone for exercising free spech rights, or whether campaign donations are a form of free speech. Just answer the damn question. NB: Law students often err by deciding to answer a question that was not asked!)
1A. Assume that there is a statutory mechanism for dissociating Yes on 8 from the partnership. If the majority of Orrick partners thereupon "expel" Yes on 8, would doing so violate the fiduciary duties they owe Yes on 8? Does your answer to that question depend on whether the partnership majority's decision was based on political animus or a fear that publicity might harm the firm in at least some of the ways identified by Wolfe in his email? Discuss.
1B. How would your answer to either question 1 or 1A change, if at all, if the governing law were that of a state that has adopted the UPA 1997?
2. Suppose the Orrick partnership agreement included the following provision:
Expulsion of a Partner. A two thirds (2/3) majority of the Partners, at any time, may expel any Partner from the Partnership upon such terms and conditions as may be set by said Partners in the resolution by which said Partner is expelled.
At the most recent meeting of the partners, a motion was made and carried by 70 yes to 10 no votes to expel Yes on 8. The resolution provided that Yes on 8 should be paid the fair value of his interest in the partnership, as defined in the provision of the partnership agreement dealing with purchase of a deceased or retired partner's interest. Yes on 8 was not provided with notice or an opportunity to be heard before the vote. The resolution did not state the grounds for expulsion of the partner and the minutes of the meeting do not set forth any such grounds.
Yes on 8 claims that the vote to expel him breached the fiduciary duties owed him by his fellow partners. Discuss