Appellate partners Paul Clement and Erin Murphy are leaving Kirkland & Ellis, the firm said Thursday, hours after they won a high-profile U.S. Supreme Court case for the New York State Rifle & Pistol Association Inc. Kirkland added that it will no longer represent clients in Second Amendment matters.
Clement and Murphy, in a separate announcement, said they are opening their own appellate boutique, Clement & Murphy. The statements highlighted the tensions of Clement and Murphy continuing to represent gun clients while staying at Kirkland.
“We do not take this step lightly. Kirkland is a storied firm, and we have many friends and valued colleagues there,” Clement said in a statement. “Unfortunately, we were given a stark choice: either withdraw from ongoing representations or withdraw from the firm. Anyone who knows us and our views regarding professional responsibility and client loyalty knows there was only one course open to us: We could not abandon ongoing representations just because a client’s position is unpopular in some circles.”
For her part, Murphy added in a statement that “the representations in question were approved years ago, and withdrawing from them now would cost the clients years of institutional memory. That is not a cost we are willing to inflict on a client.”
Soon after, Murphy and Clement’s opinion piece in the Wall Street Journal, under the headline “The Law Firm That Got Tired of Winning,” lobbed more pointed barbs at Kirkland: “ Many businesses drop clients or change suppliers as convenience dictates. To others, the firm’s decision will seem like one more instance of acceding to the demands of the woke. But law firms aren’t supposed to operate like ordinary businesses. Lawyers owe a duty of loyalty to their clients.”
The developments underscore the reputational conflicts of large law firms representing gun interests, as mass shootings continue unabated. Last month, a mass shooting in a Uvalde, Texas, elementary school killed 19 fourth-graders and two teachers. A week earlier, 10 people were killed and three injured during a shooting in a grocery store in Buffalo, New York.
In a statement, Jon Ballis, chairman of Kirkland’s executive committee, wished Clement and Murphy well, calling them “valued colleagues.” He added: “We look forward to collaborating with them in the future in matters not involving the Second Amendment.”
In Thursday’s ruling, the Supreme Court struck down a New York law that required concealed carry permit applicants to show “proper cause” for a concealed carry license. The Kirkland litigators filed their petition for writ of certiorari in December 2020.
Clement and Murphy are also representing gun owners in California and New Jersey in two Supreme Court cases challenging magazine capacity restrictions, which court scholars believed were being held pending the decision of the New York case.
Clement, the U.S. solicitor general between 2005 and 2008, has appeared before the U.S. Supreme Court more than 100 times, Kirkland stated. Murphy has argued four cases before the Supreme Court, according to Kirkland’s website. The attorneys joined Kirkland & Ellis in 2016 after the firm absorbed Bancroft PLLC, a Washington, D.C., boutique run by Clement and Viet Dinh, now the CLO of Fox Corp.
The move marks the second time Clement and Murphy have chosen an unpopular client over their law firm. In April 2011, the litigators quit King & Spalding for Bancroft after the Atlanta law firm made them choose between the firm and their clients: House Republicans attempting to defend a law that denied equal rights for married same-sex couples.
In a resignation letter Clement circulated at the time, he said that being on the right side of history was a question for clients. “When it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism,” he wrote.
Clement has represented the federal government and gun rights advocates in the most influential Second Amendment cases in recent history. While he was Solicitor General, Clement represented the Bush Administration in Heller v. D.C., the landmark 2008 Supreme Court case that established an individual right to own guns independent of service in a state militia.
Two years later, while at King & Spalding, Clement represented the National Rifle Association in McDonald v. Chicago, another landmark case that held that Second Amendment rights were fully applicable throughout the U.S., banning Chicago and a nearby suburb from prohibiting handguns.
While at Bancroft, in 2012, Clement and Murphy took on the Patient Protection & Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius. Representing 26 states, the litigators argued that the ACA was unconstitutional for multiple reasons, but the court ultimately held that the ACA was constitutional when framed as a tax rather than a mandate.
