There's Only One Real Way to Reverse Big Law's Capitulation to Trump

Yahoo

17-04-2025

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Shortly after taking office, President Donald Trump began issuing a series of executive orders targeting law firms, penalizing firms that employ—or previously employed—attorneys who have challenged him in court. The orders are plainly retaliatory and amount to state-imposed punishment for speech on matters of public concern—violating the First Amendment's protections for free speech and free association. And they're having their intended effect: People and businesses with possible legal claims against the administration are increasingly unable to find representation, as are pro bono clients the president disfavors. Although several firms have resisted the orders and multiple lawsuits are ongoing, other firms continue to concede.
A new approach is needed. We are both former attorneys of the law firm Skadden, Arps. One of us recently resigned her position specifically over Skadden's capitulation to a threatened executive order; the other of us is now a law professor. Our recent experiences show that law students and junior lawyers have the power to counteract and end the crisis—but only if they act collectively.
One might expect the most powerful law firms in the world to be both well-equipped and deeply motivated to resist such attacks on their independence. And indeed, some firms have mounted legal challenges, prevailing at the initial stages. But others, including Paul, Weiss; Skadden; and Kirkland & Ellis have quickly acquiesced, cutting widely reported-on 'settlements' with the administration—not necessarily because the law required it, but because resistance apparently seemed too costly.
Commentators across the political spectrum have criticized the deal-cutters, some calling them 'cowards' or 'craven.' Former federal appellate judge J. Michael Luttig, a noted conservative appointed by President George W. Bush, lambasted Paul, Weiss for choosing to 'cower before the powerful and sell out its firm and the nation's legal profession to the President.'
Such critiques on principle are well-intentioned, and possibly justified. But if firms see their primary duty as serving their clients and preserving their business—rather than safeguarding legal institutions and constitutional norms—shaming won't ultimately change behavior. Thus far, it seems that most firms take the former view. Moral appeals, without more, therefore won't change their incentives. What we're witnessing is a textbook coordination failure—a form of what political economists call a prisoner's dilemma. Firms that push back against the administration risk losing clients, lawyers, and revenue to those that don't. As Paul, Weiss chair Brad Karp put it, the executive order represented 'an unprecedented threat' that 'could have destroyed [the] firm' had it refused to comply. At first blush, it's difficult to see how the administration's unlawful threats could cripple a firm with $7.5 million in profit per equity partner. But in light of reports that peer firms Kirkland & Ellis and Sullivan & Cromwell promptly began pursuing Paul, Weiss' clients and rainmaker partners, its concerns may seem more understandable.
The threat of an executive order is powerful—but it works only because firms act alone and even in conflict. A failure of collective action makes things worse for everyone. Consider that weeks after trying to poach Paul, Weiss clients, Kirkland & Ellis in turn found itself in the president's crosshairs. If no firm had conceded, and all had refused to poach Paul, Weiss' departing lawyers or clients under these conditions, much of the harm might have been avoided. Firms choosing to fight the administration have quickly secured court orders halting enforcement of their executive orders; Paul, Weiss could have done the same. But by defecting individually, Paul, Weiss and others showed the administration that its tactics were working and that more bullying would be fruitful, painting a bigger target on other firms, and soon producing further demands on the settling firms themselves.. And it ensured a collective outcome that's leaving nearly all worse off than if all had acted together.
There are possible solutions, but they require not just rhetoric, but changing the material consequences of capitulation through collective action. One option would be for firms to legally commit—via binding contract or pledge, with heavy penalties for defection—to resist the executive orders together, to challenge them in court collectively (as with a recent amicus brief joined by 500 firms), and to decline to accept other firms' departing clients. Such a pact would blunt the effectiveness of coercive pressure by depriving the administration of any leverage over individual firms. But that kind of coordination carries potential legal risks, including antitrust concerns, and it could falter if even a few firms decline to participate.
The more promising strategy may lie with the next generation of lawyers. Law students and junior attorneys can exert real pressure by refusing to work for firms that give in—declining interviews, turning down offers, and encouraging law-school career offices to do the same. Such a move would not be unprecedented; in the 1990s, the Judge Advocate General Corps' prohibition on openly gay service members led many law schools to formally ban it from campus recruiting. Indeed, law students at Georgetown, Columbia, and elsewhere have already mobilized in recent weeks to refuse contact with certain capitulating firms.
To be sure, such choices carry some short-term costs, and it may seem unfair to ask people just starting their careers to bear this burden. Indeed, in a just world, the most powerful actors would bear the most responsibility for setting things right. Yet throughout history, young people have often been the first—and the most willing—to risk their own privileged status in the name of principle. And importantly, none of the actions above require anyone to quit a current job; they simply require top law students to leave certain firms off of their interview 'dance card,' opting for the many comparable firms that haven't capitulated. And there are even ways that students not interested in big law firms can take action.
If enough do so, these small, individual decisions can be collectively game-changing. Indeed, we're already seeing many top applicants deliberately prioritizing firms that have stood up to the president over those that have submitted, and additional resignations by existing associates. As these trends grow and firms incur reputational and recruitment losses, the resulting drop-off in top new legal talent and prestige may push firms to reevaluate the long-term costs of short-term concessions. Yet, ironically, the boycott would serve, not harm, firms' long-term interests. In fact, if conscientious junior lawyers successfully help nudge the legal profession toward collective resistance—instead of fragmented retreat—we all benefit: the firms themselves, clients who need representation, and a constitutional system that depends on an independent bar.
Some have argued that firms that would so quickly shrink from the profession's core principles are less likely to provide environments conducive to the honorable and ethical practice of law. Perhaps so. Regardless, the measures above can be taken even by those who disagree—who view the firms largely as victims caught in a difficult position. By threatening their independence and viability, it is the president who has unjustly put his thumb on the scale. Junior members of the profession are surely justified in rebalancing it on behalf of the rule of law.