Big Law Needs to Stand up to Trump

The legal profession is under attack in ways never imagined before. In recent weeks, U.S. President Donald Trump has targeted three large law firms with executive orders designed to cripple their practices in retaliation for representing Democratic candidates and causes.

On Friday, the assault moved to a new level with the issuance of a memorandum threatening all lawyers with unspecified sanctions and penalties who challenge the president or his administration.

What matters now is how the legal profession responds.

Why would a client choose lawyers to represent them who won’t stand up for themselves?

The orders pose existential threats to the firms. Two of the orders bar the firms’ lawyers from entering federal buildings and require the firms’ clients to report their connection with the law firm in any bid for government contracts.

Faced with the risk that their corporate clients would leave, one of the law firms, Perkins Coie, decided to fight, and another, Paul Weiss, decided last Thursday to cut a deal with the White House. In exchange for lifting the executive order, Paul Weiss promised to provide $40 million of free legal services to support President Trump’s political initiatives and agenda.

The decision made by Paul Weiss was a grievous mistake.

In the short term, it is hard to understand how cutting a deal with this President solves the problem Paul Weiss faces. It is as likely that clients will bolt the firm in disgust over the firm’s decision to capitulate in the face of a threat as it was with the executive order in place. Why would a client choose lawyers to represent them who won’t stand up for themselves?

This sentiment may well gain traction in the coming weeks, given that the firm that decided to fight, Perkins Coie, so far appears successful in its efforts to hold the executive order unlawful in court.

It is also difficult to see how Paul Weiss can ensure the benefit of any bargain it thinks it got. A deal with Trump is not worth the paper it is written on. The White House is already recasting the deal to promote its interests. It claims that Brad Karp, the managing partner of Paul Weiss, promised to end diversity initiatives at the firm and agreed that a former partner at the firm, Mark Pomerantz, who left the firm years ago and later joined the prosecution team in a case brought against President Trump, had engaged in “wrongdoing.” None of that appears in the copy of the agreement circulated by Mr. Karp to his firm.

And nothing in the agreement prevents President Trump from reinstating the executive order if Paul Weiss fails to do what he wants. It is no different from what the Trump Justice Department has attempted to do with New York City Mayor Eric Adams. There, Justice Department lawyers have asked a federal judge to drop bribery charges against the mayor, but without giving up the right to reassert the charges in the future. Like a mafia boss, it gives the president unfettered power to force a supplicant to do his bidding.

But the more important point that has been lost in the discussion over what Paul Weiss has done is the long-term damage it will do to the independence of the legal profession.

Before Paul Weiss cut its deal, President Trump made clear he was coming after the entire profession, not just three firms. Ten days ago, the newly installed chair of the Equal Employment Opportunity Commission (EEOC) announced the agency was investigating 20 of the country’s most prominent firms for alleged discriminatory practices related to diversity, equity, and inclusion (DEI).

The EEOC investigation is a fishing expedition. None of the investigatory letters sent to the law firms identifies any practice that violates federal anti-discrimination law. As seven former EEOC officials point out in a recent open letter, the EEOC has far exceeded its own authority in making the inquiry. The purpose is to intimidate and create fear. It sends the message to all firms, and their collective clients, to end efforts to diversify their workforce or the government will come for you.

Paul Weiss’ decision to capitulate adds fuel to the fire. Having put a gun to the head of one of the country’s biggest firms and walked away with $40 million in free legal services makes it more likely President Trump will target more law firms with executive orders and investigations. He did just that on Friday night with the issuance of the new memorandum.

The threat to the rule of law posed by this attack is far bigger than any one legal issue. It is a brazen assault on the right of lawyers to represent their clients to the best of their ability within the bounds of the law and the ethics of the profession.

The executive orders directed at Perkins Coie and Paul Weiss are designed to deter them from representing clients or causes President Trump opposes. The EEOC investigation warns firms not to interpret the law in ways the Trump government disapproves of. The memorandum is an effort to keep lawyers from challenging the legality of Trump’s actions in court. It is all part of the Trump playbook designed to intimidate and co-opt the best lawyers and law firms who might oppose him, and get them instead to support his initiatives.

We all lose if lawyers fear to represent clients or give their best advice based on political affiliation or interests. An independent judiciary depends on strong and independent lawyers who are free to advocate for and protect the rights of their clients, no matter what political party they belong to. No cases can be decided, and no law can be made, without lawyers to bring cases before judges and argue the merits of a client’s position.

Democracy and the rule of law, in turn, depend on an independent judiciary as a check on tyranny. But it begins with the lawyers. Without a free and unfettered bar, the engine of the judiciary can’t operate.

Chief Justice Roberts has spoken up for the independence of the judiciary with his rebuke of those calling to impeach a federal judge who ruled against the president. It is high time for all law firms to follow suit and stand up in defense of their profession.

The news has reported that Donald Verrilli, the former solicitor general, is preparing an amicus brief, or “friend of the court” brief, in support of Perkins Coie, but that law firms are undecided whether to file it. The handwringing needs to end. Every law firm that cares about its First Amendment freedoms, and the right to practice law as it has been done in this country since its founding, must now come together in support of Perkins Coie with a single voice.

There is no alternative. Benjamin Franklin is credited with observing that “we must all hang together or, most assuredly, we will hang separately.” The attack on law firms will not stop until the entire legal profession, especially Big Law, stands up and uses the skills of advocacy and persuasion that is its craft to explain how and why the political intimidation being used by the Trump administration threatens its independence, and that of the judiciary, upon which our democracy relies.