Michelle
Morgante

By Michelle Morgante
Regional Managing Editor, The Recorder

  What You Need to Know

• Lemley was part of the team representing Meta in defending its generative AI training process.
• His decision followed Meta’s moves to end fact-checking of information shared on its platforms.
• The post drew praise from some and raised questions about the ethics of such public criticism.

A Stanford Law professor this week terminated his representation of Meta Platforms in a major copyright case, citing his objection to “Mark Zuckerberg and Facebook’s descent into toxic masculinity and Neo-Nazi madness.”

Mark Lemley, the William H. Neukom Professor of Law at Stanford and director of the school’s Law, Science and Technology Program, announced in a LinkedIn post on Monday that he had “struggled” with how to respond to recent decisions by Zuckerberg.

“I have fired Meta as a client,” Lemley wrote in his post. “While I think they are on the right side in the generative AI copyright dispute in which I represented them, and I hope they win, I cannot in good conscience serve as their lawyer any longer.”

Lemley was part of the team representing Meta in Kadrey v. Meta Platforms, which was filed in July 2023 in the U.S. District Court for the Northern District of California in San Francisco.

Lemley, of Lex Lumina, filed his notice of withdrawal on Monday. Meta is still represented by Cooley and Cleary Gottlieb Steen & Hamilton.

In a statement emailed to The Recorder on Wednesday, Lemley said his decision came in response to “a series of steps” Zuckerberg had taken in the past week “to encourage disinformation and hate speech on the platform, to target LGBTQ members on the site and at the company, and to encourage a culture of toxic masculinity.”

“I decided that I could not in good conscience be associated with a company that made those decisions, so I decided to withdraw,” he said. “Meta remains represented by outstanding counsel in this case, and I believe they should and will prevail in the case. But they will have to do it without me.”

Messages sent to Meta and to Cooley were not immediately answered Wednesday. A representative of Cleary Gottlieb said the firm would not offer comment.

Meta on Friday announced it was pulling the plug on its DEI initiatives, with its vice president of human resources, Janelle Gale, issuing a memo to employees citing the changing “legal and policy landscape” surrounding diversity, equity and inclusion efforts. That same day, Meta Deputy General Counsel Roy Austin, who was also its civil rights chief, announced in a LinkedIn post he will leave the company in March.

Meta announced last week it would end a fact-checking program in which third-party researchers verified information shared on its platforms in the U.S. The outside experts, “like everyone else, have their own biases and perspectives,” it said. “A program intended to inform too often became a tool to censor.”

The company said it would, instead, move to a “community notes” process, similar to one at Elon Musk’s social media company X, that allows users to decide when posts are misleading or need more context.

Lemley’s post on LinkedIn drew both support and questions about the appropriateness of making such a public statement.

Carrie LeRoy, an intellectual property attorney in Palo Alto, California, published a post commending Lemley for his “moral courage” and called on other attorneys to follow suit.

Zuckerberg’s decisions at Meta and the addition of “right-wing directors” at the company, she said in a phone interview Wednesday, were an attempt to win favor with President-elect Donald Trump.

“These are all troubling signs and symptoms of the decline of our democracy because, unfortunately, we have tech leaders who have enormous power and sway,” LeRoy told The Recorder, pointing to the spread of misinformation shared through nontraditional media.

“It's not good for the way that we learn about what is going on in the world. There are facts," she said. "Two plus two must still equal four. We're not living in a post-fact world.”

“It is a lot broader than what Mark Lemley has said,” she said. “I commend every attorney who is doing something within their power to say, ‘No, I'm not going to sit by and be complacent in the face of increasingly fascist policies.’ We're not going to allow that to happen.”

In terms of legal ethics, the termination of an attorney’s representation can come either as a mandatory withdrawal, such as when a lawyer is fired, or as a permissive withdrawal, which can include a wide variety of other reasons, said Michael Frisch, the ethics counsel and an adjunct professor at Georgetown Law School.

This second “catch-all” category can include “finding the client repugnant,” Frisch said in a phone interview Wednesday.

“If you no longer want to be associated with the client, then I don't find it ethically inappropriate to terminate representation, so long as ... it doesn't perpetrate a harm upon the client,” he said. Given that Meta is represented by others, Frisch said it’s doubtful Meta would be harmed by Lemley’s departure.

Another matter to consider, however, is the appropriateness of an attorney being publicly critical of a client or former client, he said. There have been a number of cases where lawyers were sanctioned for violating their continuing obligation of confidentiality, he said.

“I don't find it ethically questionable that the lawyer decided to withdraw,” Frisch said regarding Lemley’s post. “I think the lawyer seeking publicity or making public statements negative about the client raises potential ethics concerns.”

He also cautioned that, in an increasingly divided political climate, “there is a danger that we’re going to lose the idea that unpopular clients deserve representation.”

The legal case at issue, and currently pending before U.S. District Judge Vince Chhabria, alleges Meta trained its artificial intelligence product, LLaMA, on a data set that included the copyrighted works of several authors, including Richard Kadrey, Sarah Silverman, Ta-Nehisi Coates and Junot Diaz.

The plaintiffs are represented by Joseph Saveri Law Firm and Boies Schiller Flexner. Messages sent to the firms were not immediately answered.

In his post Monday, Lemley said he had deactivated his account on the Meta platform Threads and would no longer buy anything from ads he sees on Facebook or on its sister site Instagram.

“While I have thought about quitting Facebook,” he wrote, “I find great value in the connections and friends I have here, and it doesn't seem fair that I should lose that because Zuckerberg is having a mid-life crisis. On reflection, I have decided to stay, though I will probably engage somewhat less than I normally do.”