From the Harvard Crimson:
Dean of the College Rakesh Khurana announced that he will not renew Winthrop Faculty Deans Ronald S. Sullivan, Jr. and Stephanie R. Robinson after their term ends on June 30 in an email to House affiliates Saturday morning.
The decision comes after more than three months of activism and outcry surrounding Sullivan’s decision to represent Hollywood producer Harvey Weinstein — who stands accused of rape — and a day after The Crimson reported allegations brought by Winthrop students, tutors, and staff of a toxic environment under Sullivan and Robinson stretching back years.
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Though their decade-long term at Winthrop will end this summer, Sullivan and Robinson will keep their appointments at Harvard Law School, where they both teach. They are the first African Americans to serve as faculty deans of an undergraduate house. ...
Students have criticized Sullivan’s representation of Weinstein since he first announced his decision in January.
Following that announcement, Sullivan wrote an email to Winthrop residents defending his decision and stressed the importance of representing the “unpopular defendant.”
My initial reaction was very much anti-Harvard and pro-Sullivan. It was being framed by many folks with whom I usually agree as a typical case of spineless higher education administrators caving to snowflake students.
But then I read Joe Patrice's Above the Law blog post. Ordinarily, I am not a fan of ATL, especially since David Lat stepped back from running it. It's a toxic mess of gossip, identity politics, progressive pontification, and snark.
Patrice's post is in substantial part the sort of sloppy thinking and guilt by association that typifies so much of ATL's "reporting." He drags in Jeffrey Epstein for no good reason, to cite but a single example.
But Patrice's post nevertheless proved to be provocative in the best sense of the word, by provoking me to think a bit more deeply about the issue.
Harvey Weinstein absolutely has a right to hire a lawyer and there’s no reason to fault an attorney for taking on that representation per se. ...
But there’s more to a decision to represent someone than holding a law license and a willingness to work. For Sullivan — and by extension Harvard — this case more closely resembled the brief, ill-fated Lisa Bloom engagement. Bloom, the noted feminist attorney, took on Weinstein as a client in the early days of the scandal that now has him facing serious jail time. When she pulled out after being scolded by her mom, I wrote:
But while that moral high horse is saddled perfectly for the attorney as lawyer, it doesn’t always suit the attorney as businessperson. Building a practice is all about finding that niche, and Lisa Bloom’s success is built on her reputation as an advocate for victims of sexual misconduct. Her clients seek her out, not just for her experience in this field, but because victims who already face an uphill battle with trust can feel confident that they have someone firmly in their corner. In fact, that’s why a mother with a practice focused on showing that consistency releases a statement like this about their daughter.
There are potential impacts to an attorney’s long-term business in every engagement. For a lawyer positioning themselves as a committed, dispassionate criminal defense attorney, unsavory clients don’t matter. For a feminist attorney, representing accused rapists undermines the core credibility of her mission.
Sullivan had “Harvard dean” attached to his name and bringing Harvard into this case put Harvard’s professional reputation on the line.
Patrice's post called to mind a couple of partnership law cases I teach in Business Associations and that I discuss on my treatise Agency, Partnerships & LLCs
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In Bohatch v. Butler & Binion, 977 S.W.2d 543 (Tex. 1998), Colette Bohatch was one of three partners in Butler & Binion’s Washington office. She suspected that John McDonald, one of the other partners in that office, was padding his time sheets and over-billing their client Pennzoil. Bohatch reported her concerns to the firm’s managing partner. McDonald was cleared after an investigation. Meanwhile, McDonald told Bohatch that Pennzoil was dissatisfied with her work. The firm subsequently expelled Bohatch. She sued for, inter alia,breach of fiduciary duty.
The majority declined to create a “whistleblower” exception to the general rule that a partnership may expel a partner for business reasons, including the preservation of good working relationships between the partners and with clients.
A concurring judge similarly stated that "I think a law firm can always expel a partner for bad judgment, whether it relates to the representation of clients or the relationships with other partners, and whether it is in good faith."
The majority relied in part on the earlier decision in Holman v. Coie, 522 P.2d 515 (Wash. 1974). In that case, plaintiff Francis Holman was expelled from the law firm of which he was a partner. In addition to being a law firm partner, Holman served as a member of the Washington State House of Representatives. In the latter capacity he had offended Boeing, which was one of the law firm's major clients:
There is testimony that in March, 1969, several of the officers of Boeing discussed, with several members of the executive committee, a newspaper article written by a political columnist, which characterized Senator Holman as a ‘tax reform maverick,’ and praised him for his independence from his client, principally Boeing. There is also testimony that in April, 1969, the president of Boeing took issue with legal fees charged by Francis Holman for legal work which he had done for the company. Francis Holman had not been in charge of the billing for the particular work done, nor had he ever been notified of the complaint until after the lawsuit was commenced.
In mid-April, 1969, Francis Holman made a speech before the State Senate regarding personal property tax legislation which was then before the Senate. There may have been some misstatement in the speech or in the reporting of it; in any event, the speech apparently served to aggravate several of the top officials of Boeing. The speech was not recorded; it was extemporaneous; consequently, there are several versions of exactly what was said. In any event, the following day, upon the request of another senator, one area of comment made during the prior day's speech was clarified by Senator Holman.
There was also an allegation by one Boeing executive that Francis Holman had exploited his attorney-client relationship with Boeing by using some of the information obtained as its attorney in commenting upon this legislation.
In April, preceding the speech, the president of Boeing advised the managing partner of the law firm that they desired Francis Holman to do no further legal work on their behalf. This had not been conveyed to Francis Holman, who was performing his legislative duties in Olympia.
Holman was thereafter expelled. He sued, claiming that his partners had breached their fiduciary duties towards him, but the court tossed the complaint.
The case has been widely understood as standing for the proposition that a partner may be expelled without liability where necessary to protect the law firm's reputation. In Lawlis v. Kightlinger & Gray, 562 N.E.2d 435 (Ind. App. 1990), for example, in which the firm had expelled a partner who was an alcoholic, the court held that:
An ... important business adjunct of a partnership engaged in the practice of law is a favorable reputation for ability and competence in the practice of that profession. A favorable reputation not only is involved in the retention of old clients, it is an essential ingredient in the acquisition of new ones. Any condition which has the potential to adversely affect the good will or favorable reputation of a law partnership is one which potentially involves the partnership's economic survival. Thus, if a partner's propensity toward alcohol has the potential to damage his firm's good will or reputation for astuteness in the practice of law, simple prudence dictates the exercise of corrective action, as in Holman, since the survival of the partnership itself potentially is at stake.
That has to be the right rule. "Reputation is an important reason for the existence of law firms. Practicing in a firm gives lawyers an opportunity to post a 'reputational bond' that provides a quality assurance to potential clients beyond what lawyers could offer if they practiced alone." Larry Ribstein, Law Partner Expulsion, 55 Bus. Law. 845, 847 (2000). If a law firm can't fire a partner who is harming its reputation, it's economic survival may be threatened.
The same would seem to be true of any service firm, including Harvard, which in economic terms is a firm selling educational services.
As to tenured faculty positions, there may be countervailing considerations that justify protecting people from being fired just because they've done something controversial or otherwise harmed the school's reputation. But, as I understand it, the positions in question did not carry tenure. In addition, the positions apparently entail front-line interactions with students.
So, if Harvard believed retaining Sullivan and Robinson would impede the school's ability to market itself to snowflakes, and thereby protect its business, they made the right call.
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