Additional thoughts about Donald Trump’s attack on the legal profession
Which lawyers are fulfilling their oath to support the Constitution and which are not?
I was not planning to write about the President’s attack on the legal profession twice in a row. But a lot has happened in the last two weeks, this issue is significant to the legal profession, and it illustrates the choice happening throughout society between institutions deciding whether they will fight autocracy at significant risk or put self-interest first. As I got to the end of writing this post I started to think about the oath almost all lawyers take when they are sworn into practice to support the Constitution and how certain lawyers are fulfilling that oath and others are not.
To summarize the events set forth in my last post, Donald Trump has gone after the legal profession over the last several weeks. Though not a lawyer, he knows the profession and the people in it extremely well. This attack has many elements of a Trump power flex. The legal profession — lawyers who bring cases against his Administration and judges who decide them — are the largest impediment to his total control of the federal government. He knows the pressure points for lawyers, especially at the large law firms. It is also an opportunity to extract personal vengeance against the lawyers who have sued him or his Administrations and the big firms who would not represent him in his 2020 election challenges. So he signed Executive Orders against two large firms, Perkins Coie LLP and Paul Weiss LLP, designed to destroy them by cutting off their access to federal buildings and federal employees and threatening to terminate government contracts for them and their clients. Perkins Coie brought a lawsuit challenging the Executive Order and obtained a temporary restraining order blocking the most threatening aspects of the Executive Order whereas Paul Weiss caved and agreed to devote $40 million worth in pro bono services to causes favored by Trump “including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism” and agreed not to pursue diversity, equity, and inclusion policies. Paul Weiss also terminated its relationship with at least one leading civil rights organization, the League of Latin United American Citizens, who has sued the Trump Administration. Trump issued an additional Executive Order that directed the Attorney General to essentially investigate lawyers who have sued the Trump Administration.
There has been more of the same in the last two weeks. Trump issued Executive Orders against two more firms, Jenner & Block LLP and Wilmer Hale. Both firms sued right away and obtained temporary restraining orders from the federal district court. Trump reached deals with three other firms, Skadden, Arps, Slate, Meagher & Flom LLP, Milbank LLP, and Willkie Farr & Gallagher LLP. Those firms negotiated deals preemptively at a greater cost — each agreed to provide $100 million worth in pro bono services for Trump-favored causes.
The Perkins Coie litigation has reached its next step where the firm has moved for summary judgment that would provide it with permanent relief. Amicus (friend of the court) briefs in support of the firm were filed by, among others, 504 law firms, 346 judges, 363 law professors, and my prior organization, the Lawyers’ Committee for Civil Rights Law. One disappointing aspect is that none of the top 20 law firms in annual revenue joined the law firm amicus brief.
Outside of litigation, there have been substantial advocacy efforts by lawyers. More than 1800 current and former law firm associates, led by Rachel Cohen who resigned from Skadden Arps and has been a public face of resistance, joined an open letter against the Trump administration’s actions against the rule of law. More than 4,000 entities and individual lawyers, including me, joined a letter addressed to the Attorney General urging her not to engage in attacks on lawyers and law firms. Law students at Georgetown are tracking the actions of 375 law firms related to their responses to Trump actions and what they are saying (or not saying) about diversity, equity, and inclusion.
That is a snapshot of where we are. Here are some questions I have been thinking of and some answers.
Why have some firms in Big Law fought and others caved?
I have a theory on this that I have tested with a couple of people that have been in Big Law, and they gave me some confirmation. The more a firm’s revenue is driven by corporate, transactional lawyers, the more likely they are to cave. The image that most people have of lawyers, me included, is that of the litigator – the person who brings or defends lawsuits. But in the very largest firms, the corporate, transactional lawyers are driving the revenue. These lawyers are helping clients with mergers and acquisitions, negotiating real estate deals, corporate restructuring, interacting with government regulators, etc. I am using the et cetera in part because my knowledge of their work is limited. But at firms like Paul Weiss and Skadden that is where the big money is made. I have been told less so at Perkins Coie, Jenner, and Wilmer Hale. My educated guess is that corporate, transactional lawyers that are involved in dealmaking as part of their day jobs see reaching a deal with Trump as just another deal. They care less about what pro bono work the firm does because they are unlikely to do it anyway, and to the extent they do, it is not in litigation. To the extent, they care about diversity, equity, and inclusion, they look at it as a small sacrifice. The most powerful lawyers have great leverage because they, with their clients, can pack up and move to another firm any time. So the corporate rainmakers hold a lot of sway.
Why are most of the Big Law firms acting weak while smaller law firms and individual lawyers acting with more strength?
On one level, this seems counterintuitive as you would think the largest institutions would be the most likely to stand up. But that is not how it is working out not only with the law firms, but with other institutions like big business and universities.
I can say this much about partners in Big Law. They tend to be both survivors and risk averse. Big Law functions like a pyramid. At the bottom, there are the large incoming group of associates that start out of law school or shortly thereafter. That group gets winnowed down, with some people leaving because they want to, and others being informed along the way explicitly or implicitly (not getting work) that it is time for them to go. A small percentage make partner. Those who stay to the end of the process and do not make partner and in a tough spot because their marketability is usually low. Making partner is not the end of it. At some firms, it is a title without meaning because you may not get a share of the profits (for new partners the real question is whether they are equity or nonequity partners). A junior partner may be completely dependent on a senior partner. Partnership compensation can vary substantially based on several factors, usually the most significant of which is how much revenue you bring in and what clients would move with you if you switched firms. It is a competitive, highly pressurized environment but also a relatively stable one compared to most lawyers. Most clients pay by the hour which sets a high compensation floor as long as most of the lawyers up and down the pyramid are relatively busy. Equity partners in Big Law are making seven figures a year or close to it. Rainmakers at the largest firms may make eight. That is a lot to put at risk for standing up for your principles: both the money and the status.
But this is how autocracy happens. Individuals and institutions make the decision to accede and not to resist the autocrat because they see the downside of resistance. Eventually this creates a tipping point where the autocrat can crush the resistance that remains, and everybody becomes subject to the autocrat’s whims.
How does the Trump attack impact Big Law engagement in challenging the Administration and the legal challenges as a whole?
There has been limited Big Law engagement in challenging the Administration from the beginning as many firms did not want to put themselves out there as a target. I have been told by multiple sources that this has even got harder since the Trump attacks. For example, some firms that were willing to do behind the scenes work have stopped even doing that.
Because there has been limited Big Law engagement from the beginning, the additional impact of the recent activities has been limited. Along with State Attorney General Offices and progressive nonprofits, the group that has stepped up are the smaller law firms and individual lawyers. And that group will be harder to target because there are more of them and they are less likely to act of fear even though they be just as vulnerable. Trump is likely to go after the states that are challenging him as well as the leading progressive nonprofits, their clients, and funders of both.
What will be the impact on the legal profession?
The courts, particularly the Supreme Court, will be an X-factor in how the challenges turn out. What Trump has done here is unprecedented and blatantly unconstitutional. I expect the firms will continue to be successful before the federal district court in DC and will be successful on appeal to the DC Circuit. They should win in front of the Supreme Court, but I wish I could be certain.
Even with victories in court, there will be a cost. For anybody that believes in democracy, the current era is a defining moment. That is certainly true for lawyers. In all but two states (Mississippi and New Hampshire), lawyers must pledge an oath to support the Constitution. In my view, the law firms who decided to succumb to the President are not living up to that oath. I also think that those firms that decided to completely sit out the President’s numerous attempts to subvert the Constitution are not supporting the Constitution either.
A question that will be asked of many of us and that we should be asking ourselves is: what did you do in this moment? For many of those in Big Law and especially the partners, if they are honest, they should be hanging their head in shame. And their action or inaction will be a permanent stain on our profession.