Tuesday Talk*: What Becomes Of The Nine?

The Trump administration has abandoned its efforts to use the power of the federal government to force law firms that had the audacity of hiring or representing Trump’s enemies to capitulate to his great and powerful will.

With a brief due this week, Justice Department lawyers told the U.S. Court of Appeals for the District of Columbia that they were no longer interested in pursuing the cases and were voluntarily asking the court to dismiss them.

The decision is the White House’s most significant acknowledgment that the executive orders cannot be successfully defended in court. The move is particularly striking given that some firms opted to reach deals in a bid to head off executive orders that President Trump’s Justice Department said it would no longer stand behind.

Striking, indeed. Four firms refused to bend the knee to Trump. Nine fell to the ground and begged for his mercy, offering to serve him to avoid feeling his wrath.

These nine firms all failed a high-stakes character test. Their leaders faced a choice between submitting to a bully and doing the right thing. The firms are not household names to most Americans, but it is worth listing them here. We hope that clients looking for fearless attorneys and law students deciding where to work will remember which elite firms were unwilling to fight back. Meekness is not a quality most people seek in a lawyer.

The first firm to fold was Paul Weiss, whose chairman at the time, Brad Karp, undertook what Ruth Marcus of The New Yorker described as a “desperate” campaign to reach a deal with Mr. Trump. The other eight firms were A&O Shearman; Cadwalader, Wickersham & Taft; Kirkland & Ellis; Latham & Watkins; Milbank; Simpson Thacher & Bartlett; Skadden Arps; and Willkie Farr & Gallagher.

For the benefit of the non-lawyers, these are the big names in Biglaw, where partners take home millions and n00bs who can’t count to 21 with their fly zipped a mere quarter mil. When I heard Paul Weiss caved, I was critical of its weakness. When others followed suit, I feared for the future of the profession. But four firms, under attack by Trump, refused to give up and give in.

The victories of the four firms — Jenner & Block, Susman Godfrey, Perkins Coie and WilmerHale — are a triumph for justice and democracy. The executive orders that Mr. Trump signed early in his second term were based on the lie that the firms had done something wrong. In fact, their lawyers were merely doing their jobs. They happened to represent Democrats and liberal groups or participated in prior investigations of him. And his would-be punishments of the firms had the potential to damage them badly. The executive orders barred the firms’ lawyers from entering federal buildings and meeting with federal officials, activities that are a necessary part of many legal cases.

It’s not easy to be a hero in Biglaw, but these firms demonstrated the fortitude that one would hope of lawyers. Clients will use whatever law firm they believe to be in their best interest. Perhaps the corporations that thought they could buy Trump’s love by paying him off through settlements of his frivolous cases will find camaraderie in law firms that, like them, caved at the first provocation. But now that the Nine are humiliated, revealed to be too weak to be trusted, too compromised to be worthy of the faith of their clients, what should become of them?

And then there are the winners in a battle that any law firm worth its salt would have fought.

Fighting the executive orders took courage, and the four firms deserve praise and gratitude for standing up to the president. They all risked losing clients and even having their firms collapse. Nine other firms folded and struck deals intended to mollify the president. The deals included promises to perform millions of dollars of pro bono work on behalf of Trump-friendly clients.

Praise and gratitude are, indeed, their due. But praise doesn’t pay the bills or the salaries of first year associates or equity partners. To the extent that Biglaw firms were once considered the cream of the legal profession, with their partners holding positions of importance and power, should their capitulation be forgotten and forgiven? They may not deserve the bill-paying clientele, but we have no say in that. We do, however, have a say in which firms’ lawyers sit on committees or run associations that exert significant influence over the profession. And when it comes time to pick federal judges, should politicians remember that they were the ones who dropped to their knees and begged Trump for mercy like the fetless cowards of the law?

To the extent lawyers have any say in the maintenance of our profession, what should we think of the Nine who collapsed in weakness? Do we have any say in whether they are held in high esteem or shunned as a disgrace to the profession? Even if we don’t, should their names ever again be spoken in hushed terms of respect or ridiculed as the embarrassment to the law they are?

*Tuesday Talk rules apply.


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9 thoughts on “Tuesday Talk*: What Becomes Of The Nine?

  1. John Barleycorn

    Model Rules for Lawyer Disciplinary Enforcement

    Do tell us more…

    Should a guy just dive right into Rule 11 “Procedure for Disciplinary Proceedings”, ignore the “Preamble” altogether, and tiptoe around Rule 1 “Model Rules for Lawyer Disciplinary Enforcement” first, or what?

    P.S. And who knew you could get a copy of the
    Model Rules of Professional Conduct, 2025 Edition, from The American Bar Association for only $34.15 if you are a member…

  2. Solomon Wisenberg

    “We do, however, have a say in which firms’ lawyers sit on committees or run associations that exert significant influence over the profession.”

    Nothing will happen on that front. Too many backs to scratch and favors to return. Perhaps a suitable moniker for the nine who capitulated will help keep the memory of their conduct alive.

  3. Oregon Lawhobbit

    Do you take the “for sure” deal or do you roll the dice in court? Regardless of how bogus the charges may be, is the price of settling worth the risk? It’s a fairly routine decision and discussion with a client. The Settled Nine decided it wasn’t worth the risk. They may regret their decision now – but “client decision remorse” is not unusual.

    There was a fun-to-read reporter out of … Seattle, I want to say … that tracked civil suits, including the always-interesting “last settlement offer” by each party and then the final judgment. Lots of lawyers and clients obviously believed they had a “sure thing,” but the end result was … not so much. Shoulda taken the offer. Much remorse, in many cases.

    The only problem here, as best I can tell, is the subject matter being one of those “hot button” ones. Otherwise, just another day in the practice of law as best I can tell.

  4. Jeff

    If you are talking about the partners on the management or the executive committee at these firms then I agree. I think it becomes a more difficult question when you think about the other partners, many of whom probably didn’t even get a vote on entering into these agreements. I guess some of them could have left and taken their business elsewhere to the extent they have a portable book but then you are left trying to figure out which partners are true partners and which partners are more like senior associates.

  5. Mark Myers

    I would like to know whether the firms still feel bound by their agreements to do pro bono work for Trump.

  6. Jeff

    Looks like he is reversing course on this one already. Not even 24 hours ago he asked the court to dismiss the cases and now he changes his mind.

    [Ed. Note: So it does.

    In a motion filed with the appeals court in the District of Columbia, where the cases are playing out, the Justice Department formally asked to withdraw its request on Monday to dismiss the cases against four law firms. It was not immediately clear how the court would respond; the department is scheduled to file a brief in the case on Friday.]

    1. Keith

      There’s a reason a party cannot simply dismiss a case at this stage. The court will hopefully take that responsibility seriously.

      Even absent their continued litigation, firms already named in the various EOs (not to mention future ones) are stuck in limbo.

      This deserves some sort of finality. Even if only for those seeking representation to have better options.

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