The Israel-Hamas war has been a catalyst for many tense situations impacting law firms, their clients and client relationships, their employees, law schools, legal organizations, and many others in the legal ecosystem. Those speaking out for either side have simultaneously served as lightning-rods for the actions of the leaders of both sides of the conflict.

While the fervor has died down somewhat with the turn of the New Year, the situation is a useful one in that it inspired law firm leaders to ask: (1) “what should we be saying on issues and when?” and (2) “how is this situation valuable to prepare for our Presidential Election Year?”

Leadership is a Call to Courage and Action

We are constantly getting asked: “What should we be saying or doing on the issue at hand and when?”

Law firms tend to not want to stick their neck out, because they want their clients’ interests to come first. But client’s welcome clarity around law firm’s beliefs, especially to determine if they are aligned.

Companies tend to not want to stick their neck out, for fear of shareholder suits or alienating customers. But extensive data proves that consumers of all types want to know that companies are operating from a belief system.

These parallel dilemmas leave law firm leaders unsure of their position and footing. Our recommendation? Leadership is a call to courage and action. No law firm exists in a vacuum, no law firm can represent everyone, and no law firm can truly be neutral. The very act of accepting a representation is a choice. That choice is one of profit versus all its priorities. Law firm leaders might as well understand who they are, accept and embrace that identity, seek clients that align with their mission and values – and speak out proudly about their brand and position.

Ranking of Scenarios by Public Opinion

When working through any scenarios list of issues, it is important to brainstorm anything possible to be included and then rank them. We recommend that clients put issues into four buckets.

• Expected – Those issues, like race and women’s rights, on which law firms are expected to speak out in favor of.

• Accepted – Those issues, like climate change and LGBTQ+ rights, on which it is deemed acceptable for law firms to speak out in favor of.

• To Be Determined – Those issues which are in movement, like abortion rights, opinions on debates rather than issues along like DEI and ESG vs. wokeness, and interpretations of motivations behind legislative efforts like voting rights, on which law firms may or may not desire to speak out in favor of.

• Not Acceptable – Those issues, like judicial candidate endorsements or even staying silent on key issues, on which it is deemed unacceptable for law firms to speak out in favor of or not speak out in favor of.

Decision Tree – Stand or Speak Out on Issues

Once a law firm has mapped the fifty or so scenarios that it is most likely to face, they are much better prepared to proactively stand up, react or stay silent about an issue. We often recommend to leaders that in a crisis, it is best to rely on that pre-planning and only alter the decision under extreme circumstances. The following questions are some of the ones we suggest using as a decision tree to determine if alterations to the plan should occur.

• Does this situation directly or indirectly involve or impact us or our team, clients, or others we care about?
• Is it the right thing to do?
• Is this part of what makes our firm different?
• Should we be demonstrating leadership on this issue, including if it is an extension of a related issue to which we are committed?
• What would our team, clients and families expect of us in this situation?
• Are we willing to take a stand that might cause us to lose clients?

Decision Tree – Client Representations

In an election year, acceptance of certain client representations can obviously be fraught with danger, or it may bring emphasis to other clients with extreme viewpoints. Law firms struggle to balance that governmental and other relationships can assist clients in other ways with potential negative impacts.

• Does taking this client, not taking a client conflict with your DEI statement, policy, or other commitments?
• If we ask the same question of one from the affected group, whether a team member, client, friend, etc., would we get the same answer?
• Does this client need DEI Committee review?
• Does or would another client have a point-of-view regarding this client/issue?
• Would this client/issue not affect one geographical area of the office negatively, but be received negatively by another geographical area or client?

Holding Statements

War, death, and injury are always at the top of crisis scenarios lists for demanding a statement or action on behalf of an organization. A number of key points became clear in the public discourse about the Israel-Hamas war: (1) an organization’s mission might limit the scope of any statement or action, such that it could address concerns for those impacted but not address the actual issue at hand; (2) an organization might not be ready to respond fully in the moment but rather could express concerns now and commit to more complete statement or action in the near future; (3) situations often change rapidly; (4) the actions of or facts revealed by others mean that opinions might need to be clarified, changed or updated; and, (5) crisis communications is never really “done” but is rather an ongoing effort. In an election year, leaders can expect to need to speak out before, during and after.

Dave Poston, Esq., is the CEO and General Counsel of Poston Communications –- one of the nation’s few Chambers-ranked public relations agencies in both crisis and litigation public relations. The agency works directly with legal departments and company executives, but also partners alongside law firms in guiding many of the nation’s leading companies.

Reprinted with permission from the January 11, 2024 issue of Law.com. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.