Even the largest and the most prominent of law firms can get themselves crosswise with clients over conflicts. In fact, at some level, it is the largest and most prominent law firms that are most at risk of the negative ramifications that can come from conflicts of interest.
Last week, the world’s largest law firm — Dentons — which has had some past public issues associated with the conscious positions it takes on whether it has a conflict or not, found itself on the end of some further bad publicity over conflicts, but not as the result of a conscious evaluation of a conflict. Rather, it came about in a way that can happen to almost any but the smallest of law firms — one or more lawyers in the firm moved too fast and took action before ever completing the process of checking conflicts.
The fact that the circumstances involved some extremely high-profile work — it involved a letter to threaten a prominent media outlet with a potential defamation claim on behalf of a member of Congress who is trying to be confirmed to a cabinet position in the Trump administration is a wrinkle I find intriguing for a number of reasons – even setting aside the inherent irony – because earlier in my career I frequently represented media entities on such questions.
Stories written about the letter that demanded a retraction and threatened potential action in the nature of defamation shed light on how the substance of the letter actually just served to confirm the basic accuracy of the reporting, but that wasn’t really the problem for Dentons. Dentons’ problem was that the media outlet in question, CNN, is a firm client on other ongoing matters. That is the kind of conflict that a basic conflicts check would easily find and avoid.
Thankfully, as soon as the left hand and right hand at Dentons figured out the situation, Dentons did exactly the right thing, sending a letter apologizing for the error and withdrawing the letter.
Media entities can tend to be pretty gracious clients, particularly when it comes to recognizing human frailty and mistakes that can come from trying to move too quickly, so my guess is that in the long run Dentons will continue to be able to have a good relationship with CNN.
Time will tell whether the public officials they aligned with to rattle a defamation saber about a story where the allegedly wrongfully excluded details would only make things worse for the official will be as gracious about the situation. Given that one of the immediate responses of the administration advocating for the member of Congress to be confirmed was to issue a statement ambiguously saying that the letter from Dentons was “not authentic,” I wouldn’t be too optimistic.