Although Benjamin Franklin often gets credit for saying “[w]e must all hang together, or most assuredly we will all hang separately,” several quote-verification sites have debunked that attribution. Still, the concept is important, even if its provenance is murky.
The Executive Orders aimed at firms like Perkins Coie and Paul, Weiss are designed to bend law firms to the President’s will. On February 25, the President issued an Executive Order that “suspend[ed] any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel….” On March 6, the President issued an Executive Order entitled, “Assessing Risks from Perkins Coie, LLP.” That Order alleged “dishonest and dangerous activity” by the firm, related in large part to its work for Hillary Clinton and to its internal DEI activity. The Order suspends the firm’s security clearances, ceases provision of any government goods and services to the firm, requires government contractors to disclose whether they do business with the firm, bans the firm’s personnel from government buildings “when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States,” and initiates a Title VII review to determine if the firm is engaging in racial discrimination. On March 14, the President executed an Executive Order entitled, “ADDRESSING RISKS FROM PAUL[,] WEISS” (in all caps this time), and it includes this nugget:
In 2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me. After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.
In other words, there’s no way to avoid linking this Executive Order with a personal vendetta. This Executive Order mimicked the Perkins Coie one.
Perkins Coie is fighting. Paul, Weiss has brokered a deal—one that included “acknowledg[ing] wrongdoing by Pomerantz”—and the Executive Order that targeted it has been rescinded. My own former law firm (Morrison & Foerster) is in the crosshairs now, too.
Personally, I loved the Williams & Connolly complaint. As I’ve been watching the drama unfold, my mind alternates between two quotes. Half the time, I think about the “hang together/hang separately” quote, and the other half, I think about the famous Shakespearean quote of “[t]he first thing we do, let’s kill all the lawyers.”
Why do I have such a visceral reaction to these Executive Orders?
First, I think that the executive branch has no business beating up on law firms. If a lawyer or law firm goes astray, the judicial system and the state bars are in the best position to deal with that misconduct. The president’s anti-lawyer Executive Orders aren’t dealing with misconduct at all, though they’re being portrayed as such. Those orders are all about the concept of “I don’t like what you do, and I have [or think I have] the power to stop you,” à la the “this is business, and this man is taking it very, very personal” scene in The Godfather. I especially don’t like the idea of the executive branch trying to intimidate law firms that might be taking positions that the current occupants of the executive branch find unwelcome.
I know that executive orders come and go with each administration, but these particular orders are designed to shut down law firms that have taken on clients or causes that the current administration finds repugnant. For those who support the current administration, let me just ask whether cheering on these Executive Orders would feel as good if the shoe were on the other foot—if the law firms that are doing what you like right now were targeted by a different administration in the future.* Let’s get a little Rawlsian here: if you didn’t know whether your law firm was going to be popular with a given administration or not, would you want to support orders like these?
Second, law firms who choose to represent a client are supposed to be concerned with that client’s interests and not with how the firms’ representation of that client might offend a current or future administration. Lawyers are fiduciaries for our clients. Once we agree to take on a representation, we’re supposed to go all-out (within the bounds of the law). Client choice happens at the moment of deciding whether to take on a client’s representation. After that, our fiduciary duties take over. If a law firm is afraid of political ramifications, it can decide not to represent a client or a cause; law firms decline representation for all sorts of reasons. If we take on an unpopular client (as a partner in my old firm did, quite famously), our duty is to that client. And we want lawyers to take on unpopular causes—even causes that can make our own stomachs turn. After all, someday, we ourselves might be that unpopular cause. (Rawls’s original position, once again.) Many law firms take on clients from all parts of the political spectrum (after parsing out any issues regarding conflicts of interest), and that’s a good thing. If we want protection for our unpopular cause, we need to support all the other unpopular causes’ freedom to have legal representation. We can’t say that lawyers are free to defend those causes that a president likes but not those that he doesn’t.
So whining about lawyers who take on cases that one group finds abhorrent misses the point, in the same way that whining about the federal judiciary being appointed and not elected misses the point. When a columnist writes “[t]hese unelected, unaccountable judges are attempting to upend the constitutional order,” I wonder whatever happened to basic civics education. Of course federal judges aren’t elected, and their whole job is to interpret our laws, including our Constitution. Article III judges have life tenure (or, at least, tenure during “good behavior”). The judiciary is there to make sure that, no matter who’s in power, the rule of law is enforced.
I cheered when Perkins Coie pushed back against the Executive Order that threatens its livelihood. But I was dismayed by stories that other BigLaw firms had been asked to join with Perkins Coie and had responded with “Bueller? Bueller?” silence—or worse yet, were trying to poach clients (and, probably, lawyers) from the firm.
I was shocked by Paul, Weiss’s decision to broker a compromise deal, given the firm’s leadership in ESG (environmental, social, and governance) and related areas. Today’s search of that Paul, Weiss group shows “page not found,” and the ESG’s group name now appears to be the “Sustainability Advisory Practice.”
Let’s start with where Paul, Weiss has my sympathies. I believe Brad Karp when he says that the firm was facing an existential crisis. The breadth of the Executive Order targeting Paul, Weiss could clearly have shut the firm down—and in short order. That means not just that the partners would have had to find other ways to make a living, but so would have the associates, the paralegals, the support staff, and the businesses that had contracts with the firm (everything from custodial help to leases). Other law firms have, apparently, been trying to poach Paul, Weiss’s clients, having already learned that tactic after the Perkins Coie Executive Order was issued. (At some point, shouldn’t the importance of preserving the profession as a whole defeat the desire to poach clients?) No one is prepared for that kind of speedy devastation, and it’s true that, when our clients are faced with the equivalent situation, one of the first things that we raise is the prospect of settling the matter. I can remember several times that I reminded a client that it might win but that it would probably go broke while trying to vindicate itself. Shouldn’t Paul, Weiss get the same consideration?
My problem is that I’m not looking at Paul, Weiss in a vacuum. I’m looking at Paul, Weiss as part of a group of powerful BigLaw firms, and I’m worried that this one compromise (which may or may not eventually pan out as good business judgment) will make it easier for the next aggressive Executive Order, and the one after that, and the one after that. And when the electorate swings back to a different party in power, it might be a different group of BigLaw firms that are faced with similar threats. I worry about that eventuality, too. When I advised a client, I tried to take into account both the client’s short-term needs and its long-term needs. The long-term needs here are the ones that motivate me to write this post.
That’s why I was so heartbroken when I didn’t see the other BigLaw firms (other than, of course, Williams & Connolly) rally behind Perkins Coie. When it comes to executive orders like these, there’s no “winning” here. Each firm is between a rock and a hard place. But there is strength in numbers. I was hoping that all of the firms would, together, take a stand that said, “you misunderstand what it is that lawyers do, and why we do it.” But that time may have come and gone.
It’s easy for someone like me (who has tenure) to say what I might do in Paul, Weiss’s position. If I didn’t like the direction in which UNLV was heading, I could take my time looking for another job. I’m not facing an emergency situation; Paul, Weiss was—or at least, it believed that it was, and its belief was objectively reasonable.
But here’s one lesson that I raised in my Professional Responsibility course yesterday in class: it’s a lot easier to take a stand on moral grounds when you’re not living paycheck-to-paycheck, either because you don’t make enough money, period, or because although you do make a lot of money, you’re using all of that to fund your current plans—your mortgage, your kids’ tuition, your parents’ health care needs.
The lesson for my students? Try not to set yourself up in a situation in which the only decision that you can make hinges on financial issues. You do yourself out of the opportunity to think of the larger picture when you’re focused on basic survival. I understand that many law students have enormous student loans to repay and that they already have narrowed options until they close out those loans. Their choices are already difficult. Sticking to a budget and being aggressive in paying down those loans should be a top priority, if they want to have a variety of other work options later.
What do I hope? I hope that the other law firms in the crosshairs decide to band together and to stand with Perkins Coie. I hope that the judicial system can sort through what an executive order can and can’t do. And I hope that we start asking ourselves whether we would feel the same way about an issue if we were situated 180 degrees from our actual situation. If the remaining law firms band together, perhaps none of them will end up hanging separately.
* Don’t get me started on the “what-about-isms.” I’ve long been disheartened by the current state of politics, which uses “well, the other side did it to us” as an excuse to stop governing collaboratively. I have a vague recollection that both sides of the aisle used to try to compromise in ways that benefitted more than just those who elected them.
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