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Late in January, Katherine Franke, a prominent Columbia Law School professor and active supporter of the Palestinian cause, appeared on television to talk about a rally demanding divestment from Israel that had taken place on the steps of Low Library a few days before. What marked this protest from the many others erupting on campuses around the country last winter was the release of a putrid smelling vapor into the crowd by a group of counterprotesters. It soon came out that at least one of them was a student and former member of the Israel Defense Forces. The university suspended him.
Some students who had been sprayed with the strange emission were certain that it was “skunk water,” a chemical the I.D.F. deploys to subdue crowds in the West Bank. Speaking to The Columbia Spectator, the student newspaper, they described feeling sick afterward. Later, the student who had been an I.D.F soldier filed a lawsuit against Columbia claiming that his disciplinary proceedings had been “flawed, biased and deficient.” His lawyers argued that he had merely engaged in a “harmless expression” of speech by spritzing the protesters with foul “novelty sprays” — which Columbia, seven months later, acknowledged they were — “purchased on Amazon for $26.11.”
Discussing the episode on the left-leaning radio and television platform Democracy Now!, Ms. Franke said that she and others had long been concerned about older Israeli exchange students “coming right out of their military service” because they had been known to “harass” Palestinian students and others on campus.
From this observation followed a cascade of accusations and legal entanglements that have spread beyond the fractious world of the academy to illuminate some of the extreme steps that elite law firms have taken since the Oct. 7 attacks on Israel by Hamas to distance themselves from Palestinian sympathies.
A few weeks after Ms. Franke’s televised comments, she received a letter from the Office of Equal Opportunity and Affirmative Action at Columbia. The office informed her that it was investigating her remarks at the request of two colleagues who maintained that they constituted harassment of “members of the Columbia community based on their national origin.”
Ms. Franke viewed this as confounding; her comments, she felt, had been misconstrued. She had meant to stress the challenging nature of certain contextual shifts and the problem of students arriving at Columbia amped up, she told me recently. “I just think it’s a tough transition from the programming you need to be a good soldier to the deprogramming you need to be a good student,” she said.
To Ms. Franke’s colleagues, the comments were an affront; to others, they were anodyne — another illustration of the intractable divide over the war. That would become clearer in the months ahead, as the tensions swelled at the law firm Ms. Franke turned to for help.
After she received word of the nascent investigation, Ms. Franke hired Outten & Golden, well regarded in the field of employment law, particularly for its focus on worker grievances rather than corporate defense. A longtime partner, Kathleen Peratis, took on Ms. Franke’s case pro bono in February. Late in 2023, she said, she won a big settlement for a female partner at a major law firm who had earned $8 million in compensation the previous year, but was told that her position was no longer tenable after she had been to a “Stop the Genocide” protest.
But by the spring, Outten & Golden had established a policy not to represent clients on either side of the Israeli-Palestinian conflict. In an emailed statement, Adam Klein, a managing partner, said that the directive had been made in part “to avoid creating a difficult workplace environment for anyone at the firm.” Beginning in late March, the firm tried to persuade Ms. Peratis to drop the case. In an email to employees sent this week, Mr. Klein said that the firm then gave her the option of continuing to represent Ms. Franke but without using its name. It had also offered “administrative and other resources if she needed them,” which Ms. Peratis said amounted to little more than helping her find malpractice insurance and not, for example, access to her colleagues’ brain trust.
Ultimately though, she declined as a matter of principle. Ms. Peratis succeeded Ruth Bader Ginsburg in the 1970s as the director of the women’s rights division of the American Civil Liberties Union in New York. She believed that the firm was objecting to Ms. Franke’s politics even as it had maintained that severing affiliation with her had nothing to do with them. “It was cowardly,” Ms. Peratis said, “and I would not be complicit in the cowardice.” The firm, in her view, was free to stop taking cases connected to Israel and the Palestinian cause, but the argument that this was a neutral position seemed disingenuous.
In an April email to Ms. Peratis shared with me by the firm, a different partner, Justin Swartz, told her to think about “promptly” limiting the firm’s related “exposure to internal or external publicity.” Three days earlier, Columbia’s now former president Nemat Shafik testified in a congressional hearing on campus antisemitism. At one point, Elise Stefanik, a Republican congresswoman from upstate New York, inaccurately paraphrased Ms. Franke’s statements as, “All Israeli students who have served in the I.D.F. are dangerous and shouldn’t be on campus.” She asked Dr. Shafik what disciplinary action had been taken against Ms. Franke. The president began her response by saying that Ms. Franke’s comments were “completely unacceptable and discriminatory.”
On July 12, the same day that The Intercept published a story about Ms. Franke’s dispute with Columbia, Outten & Golden notified her that it would no longer represent her. A spokesman for the firm said that the timing of the letter was “purely coincidental.”
A few weeks later, Ms. Peratis quit the firm over what she considered an intolerable ethical breach. In September, Ms. Franke filed a complaint with the Attorney Grievance Committees of the State Supreme Court’s appellate division claiming ethical violations on the part of Outten & Gold when “it abruptly and without cause” stopped representing her. Mr. Klein called the complaint “frivolous.”
Law firms are free to reject any case that comes to them, at the outset, on any grounds they choose. But it is very unusual for a firm to drop a client midstream for reasons beyond some of the most significant ones allowed by the ethics codes governing the profession. Lawyers can and do drop clients for not paying, for insisting on unsupportable lines of defense or for trying to use counsel to commit fraud.
“We understand that loyalty to clients is key,” said Abbe Smith, a law professor at Georgetown University and co-author of a textbook on legal ethics. “Nowhere in the rules does it say that the minute you realize a case is a hot potato you can fire the client. That’s not how it goes.”
In 2011, Paul Clement, a conservative and a former solicitor general of the United States, resigned as a partner at King & Spalding when the firm withdrew from its defense of the Clinton-era Defense of Marriage Act after much criticism from L.G.B.T.Q. groups. In his resignation letter, supported by lawyers who were themselves opposed to DOMA, he said that he was leaving “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”
In the current climate of Manhattan law firms, expressions of support for Palestinians have counted among the most unpopular positions of all. In early July, just as Outten & Golden was dropping Ms. Franke, Sullivan & Cromwell, the prestigious 145-year-old Wall Street firm, announced that it was using background checks to see if job applicants had been part of pro-Palestinian protests. Last year, some of the country’s major law firms issued a letter to prominent law schools instructing them to take a stance against anti-Israel protests.
After Ms. Peratis quit, she took Ms. Franke’s case to the Center for Constitutional Rights, a nonprofit legal advocacy organization that grew out of the civil rights movement. Columbia has yet to issue a report about its investigation of Ms. Franke’s comments. Outten & Golden may never be found to have violated any ethics codes — the firm stresses it has not harmed its former client — but the risk of reputational damage is not marginal.
“I think it’s bad for the profession,” Ms. Smith said, “because it communicates to potential clients that lawyers are so sensitive that the minute things start getting hot we’re going to quit.”
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