Tag: Big Law

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Doctors and Lawyers

Doctors

The Hill, Major medical organizations become resistance force under RFK Jr.

Politico, Doctors ‘fight like hell’ against a second Trump admin: ‘Elections do matter for your health’

AMA: Congress moves health care in wrong direction

AMA statement on Advisory Committee on Immunization Practices

The Guardian, RFK Jr to urge Americans to eat more saturated fats, alarming health experts

The majority of them are pissed, bigly, and upping their political contributions to Democrats. 

On the other hand, RFK Jr.’s positions on food choice are popular in some quarters:

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Lawyers

Above the Law, Democrats Cash In As Biglaw Lawyers & Staff Open Their Checkbooks

David Lat, Biglaw Leans Left—And is Moving Further Left, Research Shows: Around 92 percent of the Biglaw campaign contributions analyzed in a new study went to Democrats—a 12-to-1 ratio, up from 6-to-1 four years ago

Washington Post, Nation’s biggest law firms back off from challenging Trump policies

I was a Big Law partner in the 1990s, and I would guess that some 60 percent of contributions at that time went to Republicans and 40 percent to Democrats. How things have changed!

Interestingly, according to the Washington Post, our nation’s largest law firms are most definitely not putting their mouth where their money is.

At least for the most part—with some major exceptions, like the good folks at Jenner & Block, and some others.

Conclusions? Inferences? I Report, You Decide

One important conclusion I draw—and your mileage may differ—is that any “support” from Trump among the elite in our society is pretty damn hollow and brittle. 

When you put enough pressure on something that is hollow and brittle, it tends to break.

All of a sudden. 

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Trump and Big Law: The Current State of Play

The immediately preceding post gave links to sources that summarize how major law firms have reacted to Trump’s nonsense. Here, using FAQs, I give an account of the current state of play.

Among the law firms that have been targeted by Trumps, how many have sued, and how are the lawsuits going to date?

On March 6, Trump issued an executive order against Perkins Coie—“Where Innovation Meets Infrastructure”—because he was butt hurt that the firm had previously represented Hillary Clinton. Five days later, on March 11, the law firm sued. On May 2, less than two months later, the district judge issued a 100+ page order permanently enjoining Trump from carrying out his threats. 

Presumably, Team Trump will appeal the decision, but that has not happened as of this writing.

Why did the district judge in the Perkins Coie case reach a final decision in record time?

Because Team Trump had no cognizable defense. 

Or, as we used to say back in New York, their only argument is the so-you-caught-me defense.

What about the other law firm lawsuits?

WilmerHale filed its case on March 28, and procured a preliminary injunction—not a permanent injunction—on April 24. Team Trump can still appeal the PI ruling, if it so chooses, or it may decide to wait until the decision on a permanent injunction. 

Jenner & Block also filed on March 28. Judge Howell, the judge in the Perkins Coie case, rejected Jenner’s attempt to get the case assigned to her as a “related case.” The lawsuit was then bounced to Judge Bates, who granted a temporary restraining order the same day.

Fast footwork, that. 

There was a hearing on April 28 on Jenner’s request for a final ruling it its favor, but the judge has not yet issued his decision. Presumably, he is writing his opinion—with due attention to the 100+ page ruling in the Perkins Coie litigation. 

Meanwhile, a temporary restraining order against Trump remains in effect. 

Susman Godfrey was the last of the four, filing its complaint on April 11. A temporary restraining order was entered and remains in effect. On May 8, Judge AliKhan held a hearing on the question whether Team Trump should be enjoined permanently, but no decision has been released as of this writing. However, back on April 15 when he issued the TRO, the judge described Trump’s action against the Susman firm as a misuse of presidential authority and a “shocking abuse of power.”

This would be a clue about how the good judge is likely to rule.

Apart from the four law firms that have sued Team Trump, which other firms have been targeted by punitive executive orders?

In alphabetical order they are:

  • Covington & Burling
  • Elias Law Group
  • Milbank
  • Paul, Weiss, Rifkind Wharton & Garrison
  • Skadden, Arps, Slate, Meagher & Flom
  • Willkie Farr & Gallagher
Have all of these firms reached “deals” with Trump?

No. Covington and Elias have not. Milbank, Paul, Weiss, Skadden, and Willkie all have capitulated.

Have other big law firms bowed down under the mere threat of a punitive executive order?

Yes, indeed. In alphabetical order they are:

  • Allan Overy Shearman Sterling
  • Cadwalader, Wickersham & Taft
  • Kirkland & Ellis
  • Latham & Watkins
  • Simpson Thacher & Bartlett

So, all together, nine big law firms have signed “deals” with Trump?

Correct.

And why are you putting quotation marks around “deals”?

Because the so-called “agreements” are not legally enforceable and do not even purport to be legally enforceable. See, for example, Just Security, No, the President Cannot Enforce the Law-Firm Deals and Yahoo News, Trump’s Law Firm Deals Are Already Falling Apart.

Are any new “deals” in the works?

I believe not.

What’s the story with Covington & Burling and the Elias Group, both of which were targeted by executive orders and neither of which has a “deal” with Team Trump?

Covington is a major law firm headquartered in Washington, D.C., has a significant lobbying operation, and recruits politically prominent individuals from both parties. Its best known current partner is Eric Holder, the former Attorney General. 

As far as is publicly known—and that’s an important qualification,

  • Team Trump has not taken any serious enforcement action against Covington, which continues to go about its ordinary business, 
  • Covington has not lost clients or lawyers,
  • Covington has neither sued Team Trump nor issued any fire-breathing declarations against Trump, and
  • There are no ongoing negotiations.

And why is nothing happening (as far as is publicly known)? Maybe (1) Covington, being the well-connected firm that it is, has some threat to hold over Trump’s head. Or maybe (2) Covington has done something valuable for Trump, but not told anyone about it. Or, perhaps most likely (3) with both sides knowing that Covington could walk down to the courthouse any day of the week and get an injunction, both sides decided to see how the four pending cases play out, once they reach the Supreme Court, and will then reconsider their position.

The Elias Law Group, a small, progressive firm focusing on voting rights and other public interest issues, has just told Team Trump to go to hell.

In view of all the foregoing, what are we to make of the claim by the head of Paul, Weiss that he had to capitulate because his firm faced an “existential threat”?

It’s reasonable to conclude that the head of Paul, Weiss showed poor situational awareness, exercised bad judgment, and demonstrated an attitude at odds with his duty as a legal professional.

The nine capitulating law firms have, in the aggregate, “agreed” to provide over $900 million (in value) in pro bono legal services to causes mutually agreed with Team Trump. How does that stand?

Each of the nine firms has “agreed” to provide pro bono services in identified general areas, like “promoting justice” or “opposing antisemitism.” And Trump has made some public noises about the kinds of legal services he has in mind. But, as far as is publicly known,

  • None of the nine firms is currently providing pro bono services to anyone, pursuant to their Trump “deals,” and, indeed,
  • There are no reports that Team Trump has asked a specific firm to take on a specific pro bono client.

Have the nine capitulating law firms suffered negative effects such as client departures, attorney resignations, and reduced recruitment of the ablest law school graduates?

In a previous post, I reported on Microsoft’s replacement of a capitulating law firm with a fighting law firm, in major ongoing litigation. More recently, the Wall Street Journal has written about how capitulating firm Cadwalader, Wickersham & Taft is in deep doo-doo. See Venerable New York Firm That Struck a Deal with Trump Is Losing Lawyers: Cadwalader avoided a punitive executive order, but the accord has left the firm in turmoil.

There have been reports of some resignations by attorneys at other capitulating firms, but, thus far, as far as is publicly known, concrete harms have been limited.

But push will shortly come to shove. To take one example: Kirkland & Ellis expects to welcome more than 500 “summer associates” (rising third-year law students) next month, at its various offices, and probably an equal number of law graduates this fall (after they have taken their bar exams).

Of those anticipated hires, how many will actually show up? 

Maybe all of them, or maybe not. I don’t know. But I do know that, for those young men who descend on the K&E home office in Chicago, when the visit the men’s room they will find two kinds of hair spray and two brands of mouthwash. Their breath will smell of roses, but, otherwise, the stink will be pungent and lasting.

Finally, is the real effect of the nine capitulations something that isn’t written down on paper, namely, the cowardly law firms’ decision to stay away from clients and causes that Trump doesn’t like, both paid and pro bono?

Yes. That is a correct assessment.

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Big Law Spinelessness: Scorecards That Separate the Sheep from the Goats

I have been asked for a summary of how law firms responded to Trump’s threats.

There appear to be two indices. 

One tracks the “AmLaw 200”—the top 200 firms, as determined by the American Lawyer. It’s found here. The 200 law firms are listed in order of their gross worldwide revenues. But, to give additional context, the rightmost column gives information on each firm’s average profit per equity partner. For example, a firm with a very large number of lawyers may rank high in gross income but lower in profit per average partner. 

This first index is called the “Biglaw Spine Index,” a demonstrates the correlation between high revenue and profits and willingness to capitulate. 

Another comprehensive index, prepared by Georgetown Law students, will be found here.

Meanwhile, over 800 law firms are said to have signed on to amicus briefs like this one in the lawsuit brought by WilmerHale.

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Simpson Thacher and Jenner & Block—Big Law’s Answer to Goofus and Gallant—Show the Cost of Cowardice and the Economic Value of Courage

One Swallow Does Not a Summer Make—But I Think This is the Start of a Trend

N.Y. Times, Microsoft Drops Law Firm That Made a Deal With Trump From a Case

The Times writes,

When big law firms attacked by President Trump decided to make a deal with him rather than fight, many did so because their leaders feared that clients would abandon a firm caught on the administration’s bad side.

Now that logic may be getting less compelling. A major company, Microsoft, has dropped a law firm that settled with the administration in favor of one that is fighting it. … 

On April 22, several attorneys at the law firm Simpson Thacher & Bartlett informed the Delaware Court of Chancery that they would no longer be representing Microsoft in a case related to the company’s 2023 acquisition of the video game giant Activision Blizzard, according to court filings.

Simpson Thacher reached a deal with the White House last month in which the firm committed to perform $125 million in free legal work for causes acceptable to the Trump administration. In a joint statement with other firms making similar agreements, Simpson Thacher said the pro bono work would be on behalf of “a wide range of underserved populations.”

On the same day that the Simpson Thacher lawyers filed paperwork withdrawing from the Microsoft case, at least three partners at the firm Jenner & Block informed the court that they would be representing Microsoft in the case. Jenner is fighting in court to permanently block a Trump administration executive order targeting its business. …

In some cases, a client may worry that a law firm that has reached a deal with the White House has a conflict of interest that prevents it from aggressively representing the client. For example, the client may be a defendant in a lawsuit brought by the federal government and worry that a settling law firm would be reluctant to stand up to the administration.

Other clients may have broader concerns. A senior partner at another firm that does not have an agreement with the White House said his firm was beginning to attract clients from firms that had settled with the administration. The partner, who was not authorized to discuss client matters publicly, said prospective clients had indicated that they had lost confidence in settling firms for not standing up to an attack on the rule of law.

Some firms challenging the administration have sought to capitalize on this frustration, suggesting that their pushback reflects a commitment to fight on behalf of their clients as well.

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Memorandum for the Management Committee, Dewey Cheatem & Howe LLP

HIGHLY SENSITIVE AND CONFIDENTIAL

EYES ONLY

DESTROY AFTER READING

To:       Management Committee, Dewey Cheatem & Howe LLP

From:  Alphonse Thaddeus Vanderbilt-Morgan, Chair, Corporate Department

            John Maximus Rambo, Chair, Litigation Department

re:        possible participation by Dewey Cheatem as amicus in the Perkins Coie case

Question Presented

The Management Committee has asked for our joint advice on the question whether our firm should join with others as an amicus curiae in support of plaintiff in Perkins Coie v. United States Department of Justice.

Answer to Question Presented

After consulting with our colleagues and with each other, we concur in advising the Management Committee that the firm should not, at the moment, join in the amicus curiae brief.

We see the current situation as evolving rapidly. Our firm should establish a task force to monitor the situation, carefully assess alternatives, and be prepared to move when the time comes.

Analysis

In formulating our response to the Management Committee’s inquiry, we have placed most emphasis on the following eight factors (which we have not tried to rank order in importance. 

1. Inevitable Litigation Victories by Perkins Coie (#66), Jenner & Block (#51), and WilmerHale (#31). (Throughout this memo, numbers in parentheses are a firm’s rank order in profits per partner.)

Constitutional case law establishes beyond peradventure of doubt that the government may not deprive a person or organization of a benefit in retaliation for that person or organization’s exercise of its constitutional rights. Moreover, the legal filings by the three law firm plaintiffs demonstrate clearly that they, and potentially their clients and other affiliates, were denied due process of law by President Trump’s unilateral and unsupported decision that they were guilty of some fault.

 Each of the three firms has, with lightning speed, asked for and received a temporary restraining order. There is absolutely no reason to expect a more favorable outcome for the Administration as the cases move through the courts. 

In our judgment, the case for the Trump Administration is indefensible—so bad, in fact, that do not know what Justice Department attorneys may argue on behalf of the Administration without jeopardizing their own standing at the bar. 

Of particular note, people or agencies charged with unconstitutional retaliation generally try to confuse the issue by offering some pretext for their behavior. Here, however, whoever was preparing documentation in support of the Administrations executive orders against the three firms seems to have gone out of their way to create a written record that conclusively demonstrates the unconstitutionality of the orders.

2. Futility of an Amicus Brief by Other Firms. The three plaintiff law firms are very well represented: Perkins by Williams & Connolly (#89), Jenner by Cooley LLP (#23), and WilmerHale by the prestigious conservative boutique firm Clement & Murphy. Peer firms like ours have no additional legal insight to bring to bear on the situation, nor would a firm such as ours have some useful insight into the facts that might help a court to decide any of these three cases.

Our best judgment is that possible amicus briefs by other law firms, not presently involved in the lawsuits, would have zero likelihood of influencing the ultimate outcome of any of the cases. 

3. Symbolic Support for the Plaintiff Law Firms and for the Rule of Law. We agree with those who have emphasized the need for joint action to support the rule of law. But we believe this is best done by the legal profession collectively, acting through the American Bar Association and other bar groups such as the New York City Bar Association. The ABA, the NYCBA, and many others have forcefully condemned the Administration’s challenges to the rule of law. 

Our able young partner Mahmoud Sadiq serves on the NYCBA’s Board of Directors, and our senior partner Ophelia Orotund sits in the ABA House of Delegates. Both have supported resolutions condemning threats to the rule of law. We encourage them to continue along that path.

In short, our firm’s public position on the rule of law should already be clear to all concerned.

4. Potential Downsides of Going Out of Our Way to “Poke” President Trump. A small number of our clients, including two large and important clients, have been in touch with members of the firm to express concern if we “stick our heads up.” 

Within the partnership, two senior deal makers, Ainsley Smart and Alexander Hurlbutt, have expressed particular concern. Our sense is that Ms. Smart and Mr. Hurlbutt would be reluctant to move elsewhere, but you never can tell for sure. Among our partners, the strongest opponent of anti-Trump action is the head of our Washington Office, Jayson Opponlander, who hopes to steal business from WilmerHale and from Covington & Burling, which Trump has targeted and which may be in negotiation with him. 

By contrast with our Corporate Department, the instinct of many of our litigation partners is to stand up for the rule of law.

Finally, those involved in recruiting and retaining our associate work force advise that just standing pat probably will not affect us much, one way or another, in the current situation. But that could change as events evolve. 

5. Piggybacking Off of Current Litigation by Perkins etc. Unless we join as an amicus againstPresident Trump, we do not see any big risk that our firm might become a target of his ire. But if that should happen, the relevant case law on which we will rely in defense us is already being created in the three pending cases. 

6. Planning for a Hypothetical Trump Executive Order Against Dewey Cheatum. In our judgment, points one through five suffice to support our conclusion that the firm should not join an amicus brief at this time. That said, in our judgment, it is vital for the firm to begin to plan what do in the event of possible executive order against us. We believe a task force should be formed to, among other things,

  • monitor developments in the three firms’ lawsuits versus the Administration,
  • monitor client reactions to the split among the major law firms, and
  • closely watch the effect on associate recruitment—will Scadden (#12) and Paul Weiss (#21) keep on getting the pick of the litter? Or will their brands suffer from a reputation for cowardice and weakness, leading to difficulty in recruiting associates? 

Pending the monitoring of future developments, we have no definitive recommendation at the moment as to how the firm should respond to a hypothetical executive order against us. 

7. Special Attention for DEI. We have a strong DEI program. Its purpose—and, we believe, its effect—is not to discriminate against anyone, including heterosexual white males. Its purpose is to make sure that the best and the brightest feel comfortable at our firm, regardless of gender, sexual orientation, religion, or ethnicity. We want the best people we can get, and we want their best efforts.

If necessary, we can and will defend the legality of our program in court. 

While we do not recommend modifying our DEI program at this time, we nevertheless think the proposed new task force should take soundings to determine whether any of our partners, associates, or other employees feels like a victim of discrimination. If so, the firm should look into the matter and determine whether any action is required. 

8. The View from 30,000 Feet. Finally, our proposed task force should monitor not only developments like associate recruitment and client sentiment but also the big picture. 

From where we sit today, it looks as if President Trump and his advisers have initiated an aggressive authoritarian project. That project’s goals and techniques appear similar to Victor Orbán’s—except that President Trump seems to be trying to accomplish in ten weeks what Orbán did in ten years. Moreover, Orbán took care to promote the economic interests of his supporters while Trump seems to want to harm everyone.

In short, on the available evidence, President Trump literally does not know what he is doing. 

Implication: over the long run, firms that appear supportive of President Trump, or that appear subservient to him, are likely to suffer a significant reputational loss, and conversely. 

Accordingly, our firm must be ready to take appropriate action at the appropriate time. 

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The Big Law Split

Financial Times, To US law firms balk at backing Perkins’ challenge to Trump sanctions: Legal industry split over whether to join amicus brief against president’s order for fear of retaliation

The FT writes, 

None of the top 20 law firms in the US have so far offered their “unconditional support” to an effort by Perkins Coie to fight sanctions imposed by the Trump administration. 

Organisers of an amicus brief in support of Perkins Coie’s lawsuit are struggling to convince America’s most powerful law firms to sign up amid concerns they will face retaliation by the Trump administration, according to emails seen by the Financial Times. 

Eric Green, a well-known mediator, has been circulating a draft of the brief and tallying daily numbers of those law firms willing to add their names to the document. The brief is being prepared by the Los Angeles firm Munger, Tolles & Olson.  

According to an email sent on Saturday afternoon by Green’s firm, Resolutions LLC, which was seen by the FT, 173 of 248 law firms that have responded to the survey are offering “unconditional support”.  

However, among the top 100 law firms by revenue, as ranked by The American Lawyer magazine, only three have offered “unconditional support” with none coming from the top 20. 

The brief is supposed to be submitted to the court in the next few days in conjunction with the formal court papers Perkins Coie files to challenge the executive order against the firm, with Munger, Tolles & Olson trying to rally law firms behind the effort before that deadline. 

Eight firms in the top 100 have offered their support with conditions, including that their closest peers also sign the brief, according to one person involved in the process. As such, nearly all of the full-throated support so far for the amicus brief originates from small and medium-sized firms. 

“So the numbers are great, but not from the largest firms,” wrote Green in the email, which said the responses of law firms would remain anonymous in the current feedback phase. 

According to Trump’s executive order, Perkins Coie would be banned from federal government work and have any security clearances revoked. A federal judge in Washington has issued a temporary injunction to halt the implementation of the order while Perkins Coie pursues its appeal in court.  

Since the Perkins Coie order, the Trump administration has imposed sanctions on several top law firms tied to the Democratic party or who have hired investigators who previously targeted President Donald Trump. 

Law firms have been struggling with the question of whether to publicly confront Trump’s campaign against the legal community or seek a détente in order to avoid the business disruptions that the executive orders could bring. 

After facing a similar executive order, Paul, Weiss cut a deal with Trump to cancel the sanctions in exchange for $40mn of pro bono legal services dedicated in part to causes Trump supports. Another large firm, Skadden, said it would offer $100mn to support similar legal services to avoid facing its own order. 

Two other firms, WilmerHale and Jenner & Block, have vowed court fights to contest their sanctions and had their own orders temporarily blocked in federal court on Friday. 

Perkins Coie and Eric Green, the mediator, did not immediately respond to requests for comment. 

The three-page draft brief seen by the FT sets out legal arguments that challenge the constitutionality of the executive orders. 

It concludes: “Like every lawyer, the members of the amicus law firms have sworn an oath to uphold the constitution . . . that oath obligates all of us, no matter our political views, to be faithful custodians of our Nation’s commitment to the rule of law . . . we therefore feel a special responsibility to stand up now to the unprecedented threat posed by the Executive Order.”

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Jenner & Block and WilmerHale to Orange Mussolini: Fuck You Very Much

The Sheep are Separating from the Goats

There are reports that Skadden Arps is about to do a deal with Trump along the lines of the Paul Weiss capitulation. I am feeling nauseous. But all is far from lost. 

Jenner & Block is a large, Chicago-based firm with a number of offices. It is among the top 100 American firms in profit per partner. It heavily emphasizes litigation, including a serious amount of pro bono work—much of it for organizations Trump does not like. 

When the firm got in Trump’s cross hairs, it responded, in words or substance, “Fuck You Very Much.”

The firm’s statement of today reads,

Today, Jenner & Block filed a lawsuit to stop an unconstitutional executive order that has already been declared unlawful by a federal court. We expect to prevail quickly.For more than 100 years, Jenner has stood firm and tirelessly advocated for our clients against all adversaries, including against unlawful government action. We once again go to court to do just that. To do otherwise would mean compromising our ability to zealously advocate for all of our clients and capitulating to unconstitutional government coercion, which is simply not in our DNA. 

Jenner & Block’s complaint, filed on its behalf by Cooley LLP, is 64 pages long and alleges 13 constitutional violations.

WilmerHale is the union of the old DC-based Wilmer Cutler & Pickering and the old Boston-based Hale and Dorr. It has 1000+ lawyers, and is particularly prominent in litigation. It was recently ranked as number 31 among American law firms. 

To represent the firm, WilmerHale retained renowed conservative attorney Paul Clement, of whom Wikipedia notes,

During his career, Clement has argued cases on behalf of many conservative causes, such as opposing gun control;[4][5] defending a ban on federal recognition of same-sex marriage;[6][7]advocating to enjoin the Affordable Care Act;[8][9] defending Republican gerrymandering in North Carolina;[10] and, as Acting Solicitor General, defending the Controlled Substances Act under the Commerce Clause,[11] as well as the Bush administration’s treatment of terrorism suspects.

Mr. Clement’s complaint on behalf of WilmerHale runs to 57 pages, describes in great detail the eleven constitutional violations of his client’s rights, and is a masterpiece. 

Also worthy of praise is the brief in support of a temporary restraining order by Williams and Connolly, on behalf of Perkins Coie. Follow the links and read ‘em both. 

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Big Law: It’s Tuesday Afternoon, and the News is not Good

Washington Post, Law firms refuse to represent Trump opponents in the wake of his attacks: The result is an extraordinary threat to constitutional rights of due process and legal representation and a far weaker effort to challenge Trump’s actions in court than during his

Financial Times, Elite US law firms brace for more retaliation from Donald Trump: Capitulation of Paul Weiss strikes fear in American legal boardrooms

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