Is Time Up for Time’s Up?

August 9, 2021

News is out that Time’s Up co-chair Attorney Roberta Kaplan assisted Gov. Andrew Cuomo and recently his resigned top aide Melinda DeRosa. Ms. Kaplan represented Ms. De Rosa during the inquiry into sexual harassment allegations by Mr. Cuomo led by the New York Attorney General. Further, the Attorney General’s report noted that Ms. Kaplan had reviewed a letter drafted by Cuomo and/or Ms. DeRosa defending Mr. Cuomo and attacking Ms. Lindsay Boylan, who was the first to publicly complain about Mr. Cuomo’s behavior. Ms. Kaplan reportedly approved the letter minus one claim. The role of Time’s Up chief executive officer Tina Chen is less clear. While Ms. Tchen was named in the report, she adamantly denies participating in any effort to discredit a survivor of sexual abuse. Ms. Tchen said that she received a call from Ms. Kaplan about the letter being drafted by the Cuomo administration and Ms. Tchen informed Ms. Kaplan that no survivor should ever be discredited. Ms. Tchen has a career dedicated to protecting women and girls and she understands the power dynamics of sexual harassment in a way that Ms. Kaplan does not. An open letter was written by survivors to the Time’s Up board requesting an investigation and one should happen. A timeline needs to be established answering the long-standing questions of who knew what and when did they know it. Without the inner exploration of how matters got to this point is definitely needed. This betrayal may come down to one woman whose loyalties were confused and whose attraction to power and celebrity outweighed her commitment to Time’s Up’s mission.

Ms. Kaplan has no defense for her betrayal. Is there a violation of ethics rules in this conflict of interest? That is for the licensing board to decide. But her action at a minimum evidenced bad judgment and a sense that Ms. Kaplan sussed out conflict. Was her call to Ms. Tchen to obtain the CEO’s imprimatur? That itself infers her perception of conflict as well as a possible disclosure of confidential client information.

By all accounts, Ms. Kaplan is an amazing litigator. She is sophisticated and savvy. This is not a case of a misogynist manipulating her into defending an abuser. When Ms. Kaplan undertook the representation of Ms. DeRosa, certainly Ms. Kaplan was aware of the good optics of her representing someone allegedly involved in a cover-up of sexual harassment claims. Supporting a letter designed to discredit an accuser cannot be defended from a feminist perspective. Mr. Cuomo is known for his sizable ego and his lack of strong professional relationships in Albany. He was said to run his office with an iron hand. Wasn’t Mr. Cuomo’s arrogance a hint that he might not respect women? Is there anything in this description that indicates the reporters are not credible? Therein lies the betrayal. Ms. Kaplan was willing to participate in the ancient tactic of discrediting the vulnerable rather than ensure that their claims were properly investigated. Ms. Kaplan can argue that her professional work is unrelated to her fiduciary commitments but that is false. Ms. Kaplan displayed not only Time’s Up’s policy of listening to survivors- but she also approved an activity designed to undermine both individual survivors and Time’s Up’s own policies. Let’s hope that this dilemma provides an opportunity for Ms. Kaplan to consider what has become a compartmentalized identity for many lawyers: a seeming commitment to justice while not questioning scorched earth litigation tactics whose goal is to prevent a litigant from raising a claim. This could be an amazing time for Ms. Kaplan to reflect on her own values. Zealous representation does not require or encourage tactics designed to harm a litigant. Perhaps advocating the notion of zealous representation that simultaneously includes leaving the players’ respect and dignity intact could be a calling for Ms. Kaplan.

Ms. Kaplan generously supported the creation of Time’s Up but she failed in her fiduciary duty to the organization. Ms. Kaplan’s commitment was important but apparently without an understanding of survivors’ vulnerability. Attacking a survivor without substantial and credible evidence to do so betrays Time’s Up’s raison d’etre.

Ms. Kaplan needs to do two things. First, if Ms. Tchen’s account is accurate, then Ms. Kaplan must speak out for her and clear up any misstatements in the NY Attorney General’s report. Secondly, Ms. Kaplan must do whatever she can to repair Time’s Up reputation. Ms. Kaplan brought this misery on herself, and it is most unfortunate that this important organization is suffering because of her acts. If moral persuasion is insufficient, practically the best way for Ms. Kaplan to help slow the damage to her own reputation is to show the courage and humility to publicly clear the organization unfairly implicated through her actions.