Law firms stay mum on Rokita’s DEI policy

Indiana Attorney General Todd Rokita’s new policy that would blacklist outside law firms that use what he calls “illegal” DEI practices has triggered criticism from his political opponents. But Indiana’s major law firms are opting to keep quiet.

Rokita, a Republican, announced Sept. 25 that he will reject state-agency contracts with any law firm that maintains improper diversity, equity and inclusion initiatives. Rokita says the move is a stand against “unconstitutional” diversity programs that “treat people differently based on skin color” and violate state values.

Some Democrats call it unnecessary.

“This is political theater,” State Sen. Rodney Pol, a Chesterton Democrat and attorney, said in an interview with The Indiana Lawyer last week.

Indiana’s major law firms, however, have remained largely silent on the matter, a decision that legal experts say might be an effort to stay in the attorney general’s good graces.

It’s hard to know if any law firms have actually been affected by the new policy.

In response to The Lawyer’s questions about the policy’s impact, the attorney general’s office said implementation is ongoing. In an email, the office said it is “closely scrutinizing outside counsel requests to ensure consistency with the policy and state law.”

The Lawyer asked the six largest law firms in the Indianapolis area for comment on the attorney general’s new approach on DEI.

Dentons, Ice Miller LLP, and Taft Stettinius & Hollister LLP said they had no comment. Barnes & Thornburg LLP, Bose, McKinney & Evans LLP and Faegre Drinker provided no response.

But it’s not just firms keeping quiet; both the Indiana State Bar Association and the Indianapolis Bar Association have refrained from stepping into the fray.

Shortly after the policy was announced, the IndyBar invited several of its member managing partners for a roundtable discussion on the subject. Lee Christie, the organization’s president, said they all agreed not to speak on the matter.

“The consensus was not to comment or get involved until this situation plays out and there is a direct impact or effect on our members, at which time we may revisit our position,” Christie told The Lawyer.

The state bar’s executive director, Joe Skeel, said the bar has not taken a position on the issue.

The historically Black Marion County Bar Association did not immediately provide a comment for this story.

Emphasizing merit

Under the new policy, firms looking for business with the state cannot engage in DEI initiatives, like forcing employees into trainings that “push racial or sex-based stereotypes,” setting diversity preferences or targets or operating DEI fellowships, offices or committees that promote “race or sex-based classifications.”

Rokita wrote on X in September that DEI is “antithetical to true equality” because it “treats people differently based on skin color and disregards God-given skills, hard work, and character.”

He also considers DEI “inherently immoral” for “robbing” people of fair opportunity and “subjecting them to discrimination.”

But to Pol, the attorney general’s decision to reject businesses based on their political mindset actually contradicts the state’s push for merit-based work.

“It’s ironic,” he said.

Rokita has said that the policy was made to ensure law firms “reject divisive ideologies and uphold the meritocracy and fairness that reflect the values of hard-working Hoosiers.”

According to state law, the attorney general is responsible for reviewing for form and legality all state contracts to which the state agency is a party. If the attorney general “finds that a contract does not meet the requirements of the law,” then he can reject it.

State Rep. Ed DeLaney, an Indianapolis Democrat and a fierce opponent of Rokita’s approach, told The Lawyer in a phone call that he thinks the attorney general is just looking for a place to “go cause some mischief.”

“I think the attorney general’s looking to pick a fight,” DeLaney said.

Silence

While some of the state’s largest law firms have remained publicly silent on the issue, they have made some moves behind the scenes.

In January, Ice Miller announced it had created a “chief of equity and inclusion” position—an “important” role, Ice Miller Chief Managing Partner Michael Millikan said in a news release at the time.

Sometime within the past month, that title had been edited to “chief of engagement and belonging” on the firm’s website.

Similarly, Barnes & Thornburg’s “diversity partner” title has been trimmed to just “partner” on its website.

Neither firm provided an explanation as to why the changes were made.

“It is regrettable and sad that Indiana law firms would hesitate to speak out against Rokita’s policy,” said Stephen Gillers, a legal ethics professor at New York University Law School, in a statement to The Lawyer.

He said law firms, some of which have a history of promoting diversity, may be staying quiet because they want to protect their opportunities to secure state business.

Over the past five years, about 20 executive branch agencies have hired outside counsel for specialized legal needs. The value of those contracts could not immediately be determined by The Lawyer.

While a firm’s reasoning may be financial, Gillers said, he doesn’t understand why the state and local bar would fail to speak up.

“I would hope that they at least would protest,” he said. “Perhaps they still will.”

DeLaney, a lawyer himself, took a different approach.

At first, he critiqued the lack of response, saying the new rule in the country today apparently is to not “stand up for yourself.”

But shortly after, he changed his tune, saying the legal community should ignore Rokita’s policy.

“I don’t think they should react to it publicly at all,” DeLaney said. “They’re already doing what’s legal. They don’t need his help. I think they shouldn’t waste one minute of their administrative time worrying about this.”

The broader picture

For another legal expert, Rokita’s reach shares similarities to President Donald Trump’s efforts this year to deny federal contracts with law firms, saying the attorney general is also using his spending power to accomplish policy objectives.

“There are some sort of unconstitutional ways of doing that which amount to threats or coercion or something like that, but there is a traditional attitude on the part of the administration to advance its policy objectives through the spending power,” said Brad Wendel, a law professor at Cornell.

The president targeted several prominent law firms across the nation since taking office this year, punishing them for what he has called “conduct detrimental to critical American interests” when they represented clients and ideals not aligned with him.

Many of the firms gave in to the pressure, while several others fought back with lawsuits, arguing that the administration violated the firms’ free speech and due process rights.

“The government was just all over what they considered unlawful racial discrimination, which was inherent in these law firm diversity programs,” Wendel said. “That was a huge part of their rationale, and it didn’t end up really making any difference. The courts just kind of waved it off.”

Wendel noted that this is not the first time an administration has used its spending power to advance their policy agenda—both former Presidents Barack Obama and Joe Biden administrations used their spending power while in office to adopt affirmative action programs for federal contractors.

“This is just the mirror image of that,” Wendel said.

Tough spot

Pol said he hopes this policy is temporary so that firms can return to their normal operations.

He also emphasized that state leaders should “stop micro-managing” private organizations and “go back to running the state.”

Wendel also expressed sympathy for firms, saying the current federal and state situations have left them in a “tough spot.”

“They scrambled to unwind all of these diversity initiatives, and now they have employees and customers mad at them for that, but they’re afraid that if they poke their head up on diversity stuff, they’ll get creamed by the Trump administration or by the state AG,” he said. “I can see why the firms are just hoping this whole problem just goes away.”

Wendel reiterated that firms don’t want to lose business, and they especially don’t want to antagonize the state attorney general if the state is a source of business for them.

“But at the same time, if you believed in these diversity programs to begin with, you think that the firms would defend it to some extent,” Wendel said.•