Already, President Donald Trump’s attacks on BigLaw firms have earned him a deep bench of well-credentialed lawyers whom he considers available to serve his agenda at his convenience. Now, even firms he hasn’t (yet) targeted are also cowering before him, because the mere prospect of a laughably unconstitutional executive order is enough to keep managing partners lying awake at night between very expensive sheet sets.
Shortly after Trump’s inauguration, public interest lawyers teamed up with the law firm of Gibson Dunn to file a lawsuit challenging one of the president’s myriad anti-immigrant executive orders. This is a pretty common dynamic in the legal profession: By developing working relationships with law firms over time, public interest groups can marshal the resources to act quickly when the need arises. In exchange, firms can count on a steady stream of pro bono work for their attorneys, each of whom needs to accumulate their recommended minimum of 50 hours of pro bono service before December 31.
More recently, however, Gibson Dunn has reportedly had second thoughts about the wisdom of engagements like this one: According to The New York Times, in March, the firm began working with the same coalition on another lawsuit against the administration, this time seeking to ensure that unaccompanied immigrant children have access to legal representation in court. But when it came time to actually file the complaint, Gibson Dunn decided it could not risk putting its name on it. Although the firm hasn’t been the subject of an executive order, its decisionmakers feared that signing on would prompt Trump to retaliate against Gibson Dunn for having the temerity to be “associated publicly” with such a lawsuit.
Other firms have developed similarly cold feet. Skadden, which ducked an executive order by preemptively rolling over in March, also passed on joining a challenge to one of Trump’s anti-immigrant policies, the Times reports. Davis Polk, which like Gibson Dunn hasn’t been hit with an executive order, is apparently so skittish about that possibility that it turned down a request to chip in with some research help on a related case. Back in March, The Guardian reported that Davis Polk had removed from its website references to its previous pro bono work on immigration matters; apparently, the powers that be at the firm were very determined not to generate any more headlines that they might have to frantically scrub.
So far, the groups affected by these strategic retreats haven’t had much to say, at least in public. Although the public interest lawyers quoted by the Times acknowledged difficulties with getting BigLaw firms to work on immigration cases, they seemed reluctant to criticize anyone too harshly. One, for example, characterized Gibson Dunn as having “stepped up” in other ways, such as continuing to represent individual clients, representing public interest groups in court, and providing “technical support.” This sounds nice, and is also sort of like praising a doctor who offers you your choice of ibuprofen or aspirin, but refuses to set your broken wrist.
By hanging back in situations like this one, declining to participate in the higher-profile legal challenges to Trump administration policies, firms have put their nonprofit counterparts in an impossible position. These underfunded, overworked organizations often depend on supplemental assistance from the private bar to fulfill their missions, since people facing deportation can’t pay $2,000 an hour for a lawyer. But they also can’t risk alienating law firms by calling them out for being gutless chickenshits, since doing so could move their working relationships from “on hold” to “damaged beyond repair.” All nonprofits can really do in the meantime is say nice things in public, work with the limited resources they have, and hope they still have clients to serve if and when the firms rediscover their spines.
The private bar’s failures also go beyond a standard-issue lack of moral courage. The American Bar Association’s model rules of professional conduct obligate lawyers to pursue matters on a client’s behalf “despite opposition, obstruction or personal inconvenience to the lawyer,” and to “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” In this context, electing not to sign on to a meritorious lawsuit that you helped draft, all because your multibillion-dollar law firm is scared of the president, is the sort of thing that should make you ashamed to show your face in public. BigLaw has always been a business first, but if these firms were at all serious about using their institutional clout for the common good, they would not be pulling clumsy disappearing acts in the name of maintaining their positions on next year’s profits per partner rankings.
BigLaw firms did plenty to embarrass themselves over the course of Trump’s second first 100 days in office. But the greatest danger was never the handful of specific matters that a handful of targeted law firms would back off of, but, going forward, all the other matters that targeted and non-targeted lawyers alike would simply decide not to take on in the first place. This is how a chilling effect works: The most privileged people in the legal profession are now so afraid of losing their power that they won’t use it when it matters most.
