Lawyering in a Time of Lawlessness (And Also Probably Cholera)
I write a snark blog. Snark blogs are better suited to schadenfreude-type grimness and not existential grimness.
Things have taken an existentially grim turn, folks.
But here we are. It’s a multi-alarm fire this time.
Since I last wrote about this subject, my nerd association put out a statement condemning the current administration’s attack on lawyers., in response to executive orders purporting to revoke security clearances and restrict lawyers’ ability to practice, against Covington & Burling, but Perkins Coie. After the APRL statement, the administration issued a similar order against Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul, Weiss).
Today, however, the administration announced that Paul, Weiss has capitulated to its demands. As reported by The Hill:
As part of the agreement, the law firm agreed it would not deny representation to clients based on political views; that it would not use any diversity, equity and inclusion (DEI) policies; and that it would dedicate the equivalent of $40 million in pro bono legal services to support the Trump administration’s initiatives such as assisting veterans, combating antisemitism and “fairness in the Justice System.”
The White House said in a statement that Trump made the decision after meeting with Brad Karp, chair of the law firm.
“We are gratified that the President has agreed to withdraw the Executive Order concerning Paul, Weiss,” Karp said in a statement that Trump posted to Truth Social. “We look forward to an engaged and constructive relationship with the President and his Administration.”
In a post celebrating the move on Truth Social, which I am not going to link to, the president wrote:
Paul, Weiss agrees that the bedrock principle of American Justice is that it must be fair and nonpartisan for all. Our Justice System is betrayed when it is misused to achieve political ends. Lawyers and law firms play a vital role in ensuring that we live up to that standard as a Nation. Law firms should not favor any political party when it comes to choosing their clients. Firms also should not make decisions on whom to hire based on a person's political affiliation. To do otherwise is to deny some Americans an equal opportunity for our services while favoring others. Lawyers abandon the profession's highest ideals when they engage in partisan decision-making, and betray the ethical obligation to represent those who are unpopular or disfavored in a particular environment.
I am not prone to hyperbole or overreaction, so when I say ~this is an existential threat to law practice~ I mean what I say. And this is an existential threat to law practice. And democracy.
In a democracy, the government should not be dictating what clients or causes private law firms work for. It should not be shaking down these firms, or the clients of these firms, for political gain (or any other reason). If an administration has a problem with a particular lawyer or law firm based on actual conduct or misconduct, there are processes in place to address that. It should not be doing any of this.
This is also not the time for law firms to be buckling. These orders are likely unconstitutional. Perkins Coie has already won an injunction. How is any client going to trust that a firm that agrees to these terms is going to be working for their best interests and not the administration’s? How is any client going to trust that their confidences are being kept, if the administration seeks proof of compliance? How is Paul, Weiss exercising its professional independence, as required? Are associates going to be conscripted into furthering an agenda they find repugnant? Being willing to work many, many hours a week on pharmaceutical mergers or whatever does not mean being willing to work on criminalizing gender transitions or disappearing people because they’re fans of Real Madrid who happen to be brown.
And what does this mean for the rest of us?
This is deeply, deeply personal to me. As you may know, when I do not have my Ethicking hat on (and sometimes, even when I do) I have my Election Law hat on. I’ve tried to not let that part of my practice bleed into this blog, but now it’s inevitable. When I represent lawyers and others, I represent a broad spectrum of clients, without regard to political affiliation. When I have my Election Law hat on (or, for those of you who know me on Facebook, my Election Lawyer Barbie profile picture up), I represent Democrats. I co-counseled with Perkins Coie for a solid year, and they are some of the smartest, most dedicated lawyers I know. I make no secret of any of this (except what I need to keep secret, of course).
I don’t wish to represent Republicans in election matters, and it would be a conflict of interest for me to do so—in many cases, a concurrent conflict. Beyond that, lawyers are allowed to decline representation if our personal interests would materially limit our ability to work with their client—in fact, we are required to do so if we don’t think we could do the work adequately or if our clients won’t give informed consent to waive the conflict. I sure as hell do not believe I could appropriately represent a candidate whose views and policies I strenuously oppose, in an election setting, where the fruits of my labor would be electing a candidate whose views and policies I strenuously oppose.
Does the president expect us to violate our own oaths, our professional independence, our personal morals, our First Amendment rights so…we don’t hurt his feelings? Is this where we are?
