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Should courts allow anonymous suits against law firms?
May 19, 2017 / 7:29 PM / 6 months ago

Should courts allow anonymous suits against law firms?

(Reuters) - Here is one side of a story:

A Washington, D.C. litigation partner suing Proskauer for gender discrimination cuts a very sympathetic figure. According to her complaint, over her four years at the firm she’s been subjected to a barrage of creepy comments about her “sexy” body and clothing and offered insufficient help for the challenge of single motherhood. She annually generated more than $7 million in billings, her suit said, yet she was paid millions of dollars less than male counterparts – and when she complained about her treatment, she was met with threats of retaliation. Things have gotten so bad, the partner contends, that she has developed serious stress-related health problems.

The Washington partner said she is afraid to sue under her own name. On the day she filed her complaint against Proskauer, her lawyers at Sanford Heisler Sharp also filed a request that she be allowed to proceed anonymously as Jane Doe. The law firm already knows her identity, the Sanford Heisler motion said, but she’s worried that the firm will smear her name if it’s revealed.

“If identifying information is disclosed to the public at large, it will affect plaintiff’s professional reputation and ability to secure comparable employment opportunities,” the motion said. “Proskauer will likely exploit this publicity and attempt to impugn plaintiff professional reputation in an effort to intimidate her and chill this litigation.”

On Thursday, Sanford Heisler added to the accusations against Proskauer, asserting in an emergency motion to preserve mediation records that another partner at the firm baldly threatened – in mediation, no less – that the woman partner would be fired for complaining about gender discrimination. “This threat has not been rescinded and continues to hang over plaintiff’s head,” the motion said.

A law firm harassing, underpaying and bullying a top-rated professional? That’s not how law firms are supposed to behave – especially law firms like Proskauer, which has a long history of expertise in employment law.

Here’s another side of the story:

In a statement issued Friday, Proskauer repeated an earlier assertion that the Washington partner’s allegations are not true. According to the firm, the partner only began to complain about her treatment a few months ago, when her business dramatically dropped off. “She apparently became fearful that her compensation might be reduced,” the firm said. “Instead of seeking to rebuild her practice, she sought to squeeze a massive payout from our firm in exchange for her rapid departure and an agreement not to weaponize her blatantly inaccurate charges. This action resulted only when we refused to capitulate to such questionable tactics.”

Proskauer said its compensation system is not based on client billings, and that the Washington partner was told as much when she joined the firm. Moreover, according to the firm, the work generated by the Washington partner was of relatively low profitability. So “even if Proskauer paid partners solely on the metrics, which it does not, the plaintiff fails to accurately represent her contributions,” the firm said. She also fails to disclose that she was in the top 10 percent of her department in pay between 2014 and 2016, according to Proskauer.

Clearly, this is going to be a vigorously litigated case, which is why we should think hard about whether the Washington partner ought to be permitted to use a pseudonym. The question has already been answered in court: On Wednesday, U.S. District Judge Ketanji Brown Jackson granted the partner’s motion to litigate anonymously. But it’s worth looking at the costs and benefits of that decision.

The Proskauer partner’s lawyer, David Sanford, told me in an interview Friday that he doesn’t usually file complaints using pseudonyms, even in highly charged gender discrimination suits against law firms. In addition to the Proskauer case, Sanford is representing women lawyers suing Chadbourne & Parke and Sedgwick in what The American Lawyer has described as a campaign to bring gender equity to big law. The Chadbourne suit has been notably brutal; the firm voted the original plaintiff, Kerrie Campbell, out of the partnership in April.

None of the women lawyers in the other cases are using pseudonyms, Sanford said, but there are “special circumstances” in the Proskauer partner’s litigation. He declined to disclose those circumstances, citing attorney client privilege, but it seems clear from filings in the case that the Proskauer partner is worried about finding a new job if Proskauer follows up on its alleged threats to fire her. That’s a real risk. As Sanford told me, we will never know when law firms or corporations decide not to hire someone just because they’ve sued a previous employer.

“Some clients feel more vulnerable,” Sanford said. “These things are difficult. Every client we have raises concerns about what the case will mean for their future.”

Sanford said the partner knows that she will eventually have to reveal her name, but said for the moment, her lawyers are “delighted” she can litigate under a pseudonym.

Proskauer is not so delighted. The firm didn’t have a chance to file a response to the Washington partner’s motion to proceed under a pseudonym before Judge Jackson granted it. In an email statement, a Proskauer representative said, “We will abide by the request, but want to note that anonymity allows her counsel to take free shots at us unencumbered by concern that the actual facts will be fully disclosed.”

Putting aside the heat of Proskauer’s “free shots” language, the firm has a point. Even the Washington partner’s motion to litigate anonymously asserts damaging claims against Proskauer, alleging that if her name is disclosed, the firm will smear her to other employers in order to get her to drop the suit.

So prospective Proskauer employees now know from the public record that a once highly compensated partner believes her former colleagues are capable of ugly, retaliatory behavior. Yet her future employers won’t know from the record that, at least according to Proskauer’s out-of-court statement, she is allegedly capable of attempting to extract a “massive payment” in exchange for silence on her accusations of discrimination.

I’m generally opposed to courts allowing plaintiffs to sue anonymously, as I’ve said in stories about corporations and Ashley Madison customers attempting to shield their identities. Filing a lawsuit, in my view, means accepting public exposure.

The Washington Proskauer partner is a closer call, especially because Proskauer knows who she is and has addressed her allegations with specificity. (We don’t yet know to what extent, if at all, the firm will be hamstrung in court by Judge Jackson’s anonymity order.) Her story is that she’s a woman wronged by a powerful firm who will suffer additional harm if she’s forced to disclose her identity; the firm’s story is that she’s leveraging the justice system to win a payout.

I’m heartened that Sanford agreed the woman’s name will eventually be revealed. Whichever side is telling the truth, the public deserves to know.

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