Government

Roberta Kaplan Resigned From Time's Up Because She Had To

There's a difference between calling out bad actions and preemptively counseling against bad actions and that's where Time's Up got lost.

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Roberta Kaplan

Andrew Cuomo remains, for some reason, the governor of New York as of this writing. The report provided by investigators working for the NYAG produced a damning report laying out multiple violations of state and federal laws would make most people resign immediately, but most people aren’t Andrew Cuomo. Rather than walk away amid 11 detailed accounts of persistent sexual harassment, the portrait of a meticulously constructed hostile work environment, and reports of concerted retaliation against accusers, Cuomo seems willing to roll the dice with the impeachment process.

While Cuomo may be the primary focus of the report, the investigators found a lot of fault to go around. As we discussed last week in the case of Linda Lacewell, tales of harassment always include a supporting cast of enablers. Sometimes those enablers come into the situation with bad intentions, but more often they’re victims of cognitive dissonance actively or passively cultivated by the harasser.

Time’s Up president Tina Tchen and chairwoman Roberta Kaplan of Kaplan Hecker & Fink also found themselves on the wrong end of the issue they’ve devoted so much of their time trying to combat. For Kaplan, who got involved by virtue of representing top Cuomo aide — now resigned — Melissa DeRosa, this affair has put an end to her role with the organization she helped found:

On Monday Kaplan cited that representation in her decision to resign from the Time’s Up board, which was first reported by the New York Times.

“I cannot offer the degree of transparency about my firm’s matters now being demanded, since that would be contrary to my responsibilities as a lawyer,” she wrote. “I therefore have reluctantly come to the conclusion that an active litigation practice is no longer compatible with serving on the Board at Times Up at this time and I hereby resign.”

Technically she’s not resigning because of her actions, but because providing a full defense of her role would compromise her representation of DeRosa. Which is fair, but also a shame because a full reckoning of how a lawyer so deeply involved in the fight against harassment got roped into this might do a lot of good.

According to the report, Kaplan got involved in this matter at the behest of her current (clarification: by “current” I also mean “but not at that time”) client DeRosa in order to markup a draft letter responding to early allegations of sexual harassment from Lindsey Boylan:

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The Governor directed Ms. DeRosa to seek input from “some of the folks on the team.” He asked her to send the draft to Roberta Kaplan (an attorney at the firm Kaplan Hecker & Fink LLP, and now counsel to Ms. DeRosa with respect to our investigation), Mr. Cohen, and Ms. Lacewell, as well as Ms. Mogul.967 Ms. DeRosa also sent the draft to Mr. David, Mr. Vlasto, Ms. Lever, and Ms. Walsh. According to Ms. DeRosa, Ms. Kaplan read the letter to the head of the advocacy group Times Up, and both of them allegedly suggested that, without the statements about Ms. Boylan’s interactions with male colleagues, the letter was fine.

Many outlets describe this as Kaplan and Tchen “aiding Cuomo in discrediting an accuser.” That oversimplifies the matter.

For their part, they’d contend that they specifically advised the governor — or more accurately his underlings — that it’s one thing to contest the facts, but another to attack an accuser. As the report put it, “Ms. DeRosa reported back to the Governor that Ms. Kaplan and the head of Times Up thought the letter was okay with some changes,” specifically the removal of inappropriate personal attacks on the woman bringing the allegations. Despite the rantings of right-wingers, organizations like Time’s Up aren’t saying that men can’t fully and fairly respond to allegations that they believe are false, just that everyone needs to stop giving men the benefit of the doubt in every case. Part of how men traditionally seize the benefit of the doubt is through exploiting misogynistic biases like claiming accusers somehow “asked for it” based on interactions with others.

So one could look at the Time’s Up involvement here as the opposite of trying to discredit an accuser, at least to the extent that they reportedly counseled against stigmatizing attacks. That seems to be the take of Time’s Up board member Hilary Rosen, who characterized Kaplan’s actions as an example of “no good deed goes unpunished.”

On the other hand, helping someone accused of harassment respond to allegations “the right way” can be more damaging than letting a guy trip himself on his own rope. At some point, telling a politician — particularly one on the Democratic side of the aisle — to keep the response above board merely sanitizes it, allowing him to look like the “good” accused. “See, he didn’t resort to all those shameful ad hominem attacks the other guys use!”

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Is elevating the discourse generally worth potentially giving a guy rhetorical cover? Being able to have a full hashing out of the thought process that went into providing the advice detailed in the report could help everyone understand how tricky this balancing act can be.

Fundamentally, Kaplan may have stepped down for the sake of her representation of DeRosa, but she would’ve needed to move on in any event. Unlike a lot of critics, I don’t think the actions described in the report rose to the level of “trying to discredit an accuser.” The actions described in the report seem like an honest effort to flag harmful and misogynistic rhetoric. But Time’s Up does its good in calling out that rhetoric after it’s happened, not in preemptively policing it. Once the group’s credibility was injected in a way that even arguably helped an accuser mount a better defense, the damage was done.

Rebuilding trust with those Time’s Up serves can only happen when changes are made. Even just to signal that the organization takes this seriously and realizes, regardless of benign intention, this can’t be characterized as a “good deed that went punished,” but a mistake.

Cuomo harassment report leads to escalating fallout at Time’s Up and Human Rights Campaign [Washington Post]

Earlier: NYAG Investigation Concludes Andrew Cuomo Committed Multiple Sexual Harassment Violations
NYU Law School Ethics Professor Pegged In Efforts To Discredit Andrew Cuomo Accuser

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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