An anonymous ethics complaint targeting prominent WilmerHale attorney William Lee is calling on the Massachusetts attorney general’s office to investigate the firm’s relationship with Harvard University, where Lee served on its governing board for over a decade.
Lee and WilmerHale represented the elite school in its attempt to defend its race-based admission policy from legal attacks by conservative groups, a battle it lost at the Supreme Court last summer. The firm also coached ex-Harvard president Claudine Gay for what turned into a highly damaging congressional hearing on antisemitism that helped lead to Gay’s ouster.
Although the complaint represents another instance that spotlights WilmerHale’s ties to Harvard, the fact that one of the firm’s top lawyers served on the university’s board as it paid millions of dollars to the firm does not on its face represent any wrongdoing, said Stephen Gillers, a New York University legal ethics professor.
Lee, a lead trial lawyer for Harvard in the high-profile litigation that led to the end of affirmative action at colleges, is the target of the complaint filed with the Massachusetts attorney general’s office over an alleged conflict of interest, a spokesman for the AG confirmed Friday.
The anonymous complaint, the New York Post reported, claims the WilmerHale partner and Harvard alumnus Lee may have violated conflict of interest rules for public institutions.
The Massachusetts AG’s office did not say whether it has launched an investigation and offered no details beyond confirming the complaint was received.
“There was nothing improper about the firm’s legal representations of Harvard,” WilmerHale said in a Monday statement, noting Lee recused himself from all of the school’s decisions concerning the case.
The university told the Harvard Crimson, a student-run newspaper, in 2018 that Lee did not bill the school for his work on the affirmative action case, “nor does he receive any payment for revenue based on the firm’s billing to Harvard as part of the case.”
There’s no evidence suggesting “Lee, on behalf of Harvard, personally participated in any decision for the school in which his law firm had an interest,” said Gillers. “The fact that Lee was on the Harvard board while his firm and he represented the school violates no rule.”
WilmerHale ensuring that no compensation went to Lee from the case appears to show the firm was “bending over backwards to ensure there is no issue at all,” said Scott Cummings, a UCLA School of Law professor.
Harvard’s comment from 2018 does, however, leave “open the possibility that Lee receives payment for revenue based on the firm’s billing to Harvard that was not part of the affirmative action case,” said Kathleen Clark, a legal ethics expert at the Washington University in St. Louis.
During Lee’s tenure on the Harvard Corp, which he led from 2014 to 2022, the school consistently answered no to a question regarding whether it was ever a party to a transaction in which one of its officers had a material financial interest, according to public disclosures.
“The only way that can be true is if he received no compensation for his own labor and no compensation or profit sharing from Wilmer based on the money Wilmer’s billing to Harvard,” said Clark.
Harvard’s legal bills jumped as it defended a lawsuit from a conservative group challenging its affirmative action policies in admissions. Legal expenses increased from $13.4 million in fiscal 2017 to $27.4 million in 2018, Bloomberg News reported.
Public disclosures from fiscal years 2018, the year the affirmative action challenge first went to trial, and 2019 show WilmerHale was among Harvard’s five highest paid consultants during those years, earning roughly $17.7 million for its legal services. The disclosures said Lee did not play a role in the selection of the firm to perform that work.
Harvard complies with state and federal reporting requirements for public charities and tax-exempt organizations, and its annual filings include any individual or entity “that meets the threshold or requirement for reporting,” a school spokesman said Tuesday.
‘Foot Soldier’
A veteran Boston-based litigator, Lee in 2004 played an integral part in the merger that created WilmerHale, and he served as the firm’s co-managing partner in its early years. He became a fellow at the Harvard Corp., the school’s powerful governing council whose responsibilities include hiring the university president, in July 2010, according to his WilmerHale website bio. He earned no compensation from that position, according to tax filings.
Harvard turned to a group of WilmerHale lawyers including Lee soon after facing a lawsuit challenging its use of race as a limited factor in its admissions. Lee served as Harvard’s lead lawyer in the 2018 district court trial, which ended with a Massachusetts judge upholding Harvard’s admissions policy.
“Before I entered my appearance I completely recused myself from all of my fiduciary obligations having anything to do with this case,” Lee said in a 2016 hearing, according to a court transcript. “I’m just here to be one of the foot soldiers at the trial.”
Corporate and nonprofits boards are often sending legal work to people with whom they may have close relationships, said Cummings.
The only problem would be if WilmerHale, a firm with deep trial and appellate benches, got “more work than it normally would,” Cummings said. “As long as there aren’t any allegations of unfairness, then I don’t see the problem.”
Lee stepped down from Harvard Corp. in June 2022. In December, he worked with the WilmerHale team that coached Gay before the congressional hearing on antisemitism on campus following the Oct. 7 Hamas attack on Israel, according to the Harvard Crimson.
Gay resigned weeks later as she faced heat from school donors such as billionaire investor Bill Ackman over her handling of antisemitism on campus and additional allegations of plagiarism.
Harvard in January added King & Spalding to its legal team handling investigations from the House Education and Workforce Committee chaired by Rep. Virginia Foxx, a Republican from North Carolina. The panel is investigating allegations of antisemitism on campus along with the university’s response to allegations of plagiarism against Gay.