In the past month, President Donald Trump has taken aim at several prominent law firms through executive orders and investigations into their HR practices. Some critics have been quick to blame the targeted firms for yielding to the President’s demands, but the focus should be on Trump himself, the instigator of these retaliatory actions.
Three of the targeted firms, Jenner & Block, WilmerHale, and Perkins Coie, responded by challenging the President in court and successfully obtaining restraining orders against the executive orders. Covington & Burling, another firm, did not respond to a more limited executive order. Meanwhile, Paul, Weiss and Skadden Arps reached what are described as “cosmetic settlements” with the President, leading to the withdrawal of his threats. According to Paul Weiss chairman’s communication with his firm, this agreement addressed a critical threat without compromising the firm’s principles or policies. The letter also revealed that Paul Weiss became a target after Brad Karp attempted to garner support from other major firms for those initially targeted. Conversely, some rival firms reportedly tried to recruit Paul Weiss attorneys and clients, sensing weakness.
These settlements with the President have involved commitments to substantial pro bono legal work on causes like veterans’ rights, anti-Semitism, and promoting fairness in the legal system. The firms have historically supported these causes, and the dollar amounts are relatively small compared to their existing pro bono contributions. Karp also asserts that Paul Weiss’s settlements did not include any condemnation of past firm engagements or HR practices, nor do they impose any formal restrictions on future representations, including those against the Trump Administration. Such a deal appears to be an effective strategy for reassuring major clients and preventing the loss of top attorneys.
The legal system often requires balancing drawn-out, costly litigation with quicker, negotiated settlements. The choice depends on the strategic position of each party. The President is unlikely to succeed in lawsuits challenging his executive orders, giving him an incentive to settle with face-saving measures, a reality that Paul, Weiss and Skadden Arps recognized. Furthermore, as a Yale colleague noted in the Wall Street Journal, the firms that settled quickly tend to have larger corporate transaction practices, which are more susceptible to client departures, compared to firms with larger litigation practices. It’s understandable that firms with different business models would handle the crisis in distinct ways. Given the volatile nature of law firm assets and their fiduciary duties to clients and employees, firms can make varied business choices while maintaining their integrity and securing their futures.
The ongoing, complex situation at Wilmer Hale further highlights the appeal of the settlements reached by Paul Weiss and Skadden Arps. While Wilmer Hale was granted temporary relief, the judge denied a request regarding security clearance matters, recognizing the President’s executive authority in that area, which necessitates continued litigation. Clients who need lawyers with security clearances may be uneasy if there is any perceived urgency in their representation.
Criticism of Paul Weiss and Skadden Arps’s actions has overlooked the central issue. The President’s primary aim was to target almost every leading law firm that has represented or hired individuals who have challenged his actions in court. Notably, firms considered Trump-friendly, like Jones Day, Quinn Emanuel, and Sullivan & Cromwell, were not among those attacked. One particularly concerning aspect of this situation is that the President sought advice from the co-chairman of Paul Weiss’s rival, Sullivan & Cromwell—who is also Trump’s personal attorney in his appeal of his conviction on 34 counts for falsifying business records—while negotiating with Karp. It’s remarkable that this involvement hasn’t faced greater scrutiny and criticism.
The legal profession could learn from other industries. Following the devastating loss of colleagues in the September 11, 2001 attacks, financial firms saw competitors offering immediate assistance. Clients weren’t poached, and talent wasn’t taken from the affected firms.
Similarly, during the 2008 financial crisis, leaders of top financial firms collaborated to develop support for the Troubled Asset Relief Program (TARP), even though they were in strong positions to capitalize on their struggling competitors. UPS and FedEx routinely offer support to each other during operational failures, labor disputes, and other disruptions, rather than exploiting the situation for their own gain.
In 2021, when Delta Airlines voiced concerns about restrictive new voting laws, the President called for a boycott. In response, the chief executives of American and United immediately expressed public support for Delta and joined a conference call quickly organized for that purpose.
The collective action by chief executives in the business world has significantly curbed the unchecked authoritarian erosion of American democratic institutions. The legal industry stands apart, and the resulting impression is unfavorable. The hypocritical condemnation of law firms that settled is noteworthy, especially since many of those same attorneys previously failed to support the firms under attack by the President. Instead, they are blaming the victim.
Hopefully, legal leaders can take cues from bolder leaders in other sectors. Already, deans of law schools have collectively denounced the President’s attacks on law firms, while smaller firms, such as Kaplan Hecker & Fink and Gupta Wessler, have publicly defended their larger counterparts, suggesting “friend of the court” briefs.
Monday, the New York City Bar Association joined the condemnation of President Trump’s coercive partisan executive orders attacking these law firms, while the American Bar Association has condemned this attack on the rule of law. Perhaps the big firms can join with the scrappy little firms out of enlightened self-interest. It wouldn’t hurt to hear from their clients now, either. It is not too late for the legal industry to redeem itself in this perilous moment.