Law Firm Independence Under Attack With Executive Orders

(This piece was first published by the Chicago Daily Law Bulletin.)  

Over the last few months, unprecedented executive actions by the Trump administration have placed the legal profession, particularly large law firms, in the crosshairs.

These actions have targeted some of the country’s most prominent firms — Paul, Weiss, Rifkind, Wharton & Garrison; Skadden, Arps, Slate, Meagher & Flom; Willkie Farr & Gallagher; Milbank; Jenner & Block; and Wilmer Cutler Pickering Hale and Dorr, among others — with executive orders, public accusations and regulatory pressures, all tied to their past representation of clients adverse to the administration, hiring attorneys deemed to have been against President Donald Trump, or their diversity, equity and inclusion programs.

The language of these orders and memos is striking. The administration has accused major law firms of “weaponizing the justice system,” of engaging in discriminatory hiring practices, and of pro bono work intended to undermine American interests — particularly in the immigration context. Firms have been threatened with the loss of government contracts, suspension of security clearances and public shaming.

King ain’t satisfied

Bruce Springsteen once wrote, “Poor man wanna be rich, rich man wanna be king, and a king ain’t satisfied ’til he rules everything.” That lyric feels eerily relevant here. These moves by the administration aren’t about oversight or reform; they’re about control — about who gets to advocate, who gets to challenge, and who gets to stand in opposition. And a war chest for unknown future work for President Trump and his administration is building.

Some firms — most notably Skadden, Paul Weiss, Willkie Farr, and Milbank — chose to resolve these threats by entering into agreements with the administration. Each of these settlements required large-scale pro bono commitments — ranging from $40 million to $100 million — an end to DEI hiring initiatives and, in some cases, a public rebuke of firm practices and former partners.

Others, including Jenner & Block, WilmerHale, and Perkins Coie, have chosen to fight back in court.

Assault on the legal system

The question for the legal community is not simply one of political disagreement. This is a frontal assault on the core principles of the independent bar. The Trump administration has used the levers of executive power to punish private law firms for engaging in exactly the sort of work that the legal profession prizes: zealous representation of clients, commitment to diversity and service to the public through pro bono work.

The administration’s campaign against these firms is not about cleaning up abuses or rooting out unethical behavior. It is about retribution and intimidation.

Gregory B. Craig recently wrote an essay for The Washington Post and quoted Williams & Connolly founder Edward Bennett Williams:

“If our law firm isn’t strong enough to take this kind of case — as controversial and as blameworthy as this person is — it would certainly be hard for any other firm to do so.”

The Williams & Connolly alum goes on to note that while taking on a thorny case is not the same as fighting an executive order, the question remains: “How much risk is a law firm willing to take to maintain its independence?”

“If Trump’s executive orders were not so grotesquely unconstitutional and dangerous to a free society,” Craig writes, “I might be more sympathetic to a law firm that doesn’t want to assume the risk of taking on the president …. But the undeniable purpose of Trump’s attacks against America’s law firms is to destroy the independence of the legal profession in the United States and weaken the rule of law. That simple truth should inspire every American lawyer to stand up and join the defense.”

Won’t back down

As noted, some firms are standing their ground, taking the administration to court and challenging the legality and constitutionality of these executive orders. This includes my friends at Jenner, one of the premier law firms in this city. My friends at Jenner and others fighting bring to mind Tom Petty’s defiant line: “You can stand me up at the gates of hell, but I won’t back down.”

In moving for a temporary restraining order, Jenner alleges that the executive order “is an unconstitutional abuse of power against lawyers, their clients, and the legal system. It is intended to hamper the ability of individuals and businesses to have the lawyers of their choice zealously represent them. And it is intended to coerce law firms and lawyers into renouncing the Administration’s critics and ceasing certain representations adverse to the government.”

Chief Justice John Roberts reminded us last month that impeachment is not the proper response to disagreement with judicial decisions. The same can and should be said about law firms. It is not the place of the executive branch to punish lawyers for whom they represent or what causes they fight. (I wrote in my last column about John Adams and his defense of British soldiers.)

The legal profession — whether in Big Law, public interest, government or solo practice — depends on the principle that lawyers can represent clients without fear of retribution from the state. When that principle is undermined, the entire system suffers.

The long-term damage from this campaign may not be measured in headlines or billable hours, but in the erosion of the independence of the bar itself.

Recall a few of the grievances in the Declaration of Independence:

“He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.”

“He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

Conclusion

And yet, despite these pressures and difficult decisions being presented to law firms that are targeted, there are still those in the profession fighting to preserve that independence, even when the cost is high. Craig’s call to action reminds one of the words of Benjamin Franklin at the signing of the Declaration of Independence, “We must, indeed, all hang together, or most assuredly, we shall all hang separately.”

It’s worth remembering, as Neil Young once sang, we have to “keep on rockin’ [and lawyerin’] in the free world.” Because without an independent bar, that freedom is a lot less certain.

Dan Cotter is a member of Dickinson Wright PLLC in Chicago. He serves on the ACS Chicago Lawyer Chapter Board of Directors and serves as President of the National Conference of Bar Presidents.

Constitutional Interpretation, Executive Order, First Amendment, Right to Counsel