In former times, traffic between top US law firms and government or public service was heavy – to the point of apparent co-dependence. Certainly, it reflected the status of the profession in American life. Hence, the profound shock felt at the US’s ‘Big Law’ firms when Donald Trump began targeting elite practices, against which he holds grudges, with executive orders.
It is easy to judge harshly those US-headquartered firms that capitulated – unravelling their DEI policies and undertaking to do millions of dollars in pro bono work for Trump-backed causes and individuals. The easy way out – or so it seemed.
But as temporary restraining orders against enforcement of the executive orders are replaced by rulings striking them down, the position of the firms that reached a deal with the White House starts to appear less comfortable.
There has been real damage to their global partnerships, with some outside the US relating that they feel ‘disenfranchised’. By origin Allen & Overy was a Dutch-British firm. A&O Sherman is getting a rough ride in the Netherlands, with its lawyers briefing the press that they are ‘sorry and embarrassed’.
The apparent conditions of capitulation are hugely problematic for any lawyer. They allow permanent government interference in private institutions – a principle Harvard could not stomach. Government can dictate which cases, paid or pro bono, these firms bring. They cannot independently advocate for their clients.
Then there are the pro bono commitments. It is unclear how formally constituted these are, but the White House’s view of their purpose seems to shift at will. Ideas for cases so far include acting for oil and gas companies, or for police accused of ‘misconduct’. Will partners order employees to work on such cases? What if they refuse?
Trump’s orders were undoubtedly intended as an existential threat to the law firms targeted. The trouble is, complying with them increasingly looks like an existential threat to any meaningful membership of the profession.
As Judge Beryl A. Howell noted in her judgment striking down the order targeting Perkins Coie: ‘Some clients may harbor reservations about the implications of such deals for the vigorous and zealous representation to which they are entitled from ethically responsible counsel.’
No comments yet