Fund Client Explains Decision to Fire Morgan Lewis

April 3, 2017, 9:25 PM

Before the Wallace Global Fundfired Morgan Lewis & Bockius as its outside law firm late last month over its representation of President Donald J. Trump, the $150 million grant-making organization set about trying to find a new law firm.

“There was another D.C. firm that had someone I thought would have been perfect,” said Scott Wallace, co-chair of the Wallace Global Fund, adding the attorney had the perfect combination of experience and skill.

“And then in the interview we asked him, ‘Your firm doesn’t represent Trump on anything?’ And he said ‘well yeah.’ It turns out they represent the Trump Hotel in trying to reduce the tax bill, and I’m sorry, that’s a deal killer.”

That law firm, which ultimately lost the bid to represent the Wallace Global Fund was Arnold & Porter, and the attorney involved was Jim Joseph , Big Law Business has learned.

Reached by phone on Monday, Joseph declined to comment.

Instead, Wallace said his organization ultimately tapped Harmon, Curran, Spielberg + Eisenberg, a boutique law firm that specializes in representing non-profits and tax exempt organizations that “advance social, economic and environmental justice.”

Wallace said those values align more closely with the mission of his organization, which fights against the rise of corporate interests, for greater democratic participation and better government, the threat of climate change and other issues.

His organization has been riding a wave of attention after various media outlets reported last week that that Wallace is terminating his fund’s relationship with Morgan Lewis based on the firm’s work for Donald Trump. Specifically, Wallace took issue with the fact that firm partner Sherri Dillon announced at a Jan. 11 press conference she has advised Trump that he does not have to divest his business assets or put them in a blind trust while in office. Wallace said that has given Trump a free hand to use public office for personal gain.

In axing Morgan Lewis, Wallace said his organization is aligning its expenditures so that it does not support companies or law firms with interests that conflict with its core values.

Wallace said he believes dozens of law firms likely have represented Trump although he is not aware of anyone else terminating their law firm as a result of those ties. [One source who was not authorized to speak publicly, pointed out law firms often represent politicians from both parties and noted Morgan Lewis also represented Hillary Clinton in helping to vet potential vice-presidential candidates.]

Morgan Lewis declined to comment.

One item that escaped notice last week is Wallace’s background as an attorney who spent more than two decades advocating for an expansive view of the sixth amendment and fighting to ensure every criminal defendant, no matter how poor or what the charges, had access to a lawyer. This included stints as counsel to the U.S. Senate Committee on the Judiciary, consultations with the U.S. Department of Justice and seven years as the director of Defender Legal Services, National Legal Aid and Defender Association.

“Even the most despicable people have a right to an attorney,” Wallace said. “This feels different.”

Specifically, he called out Trump’s use of public office for personal gain — holding meetings in his Florida resort, tweeting about his daughter’s clothing line, and obtaining trademarks from China were examples cited in his letter to Morgan Lewis.

That runs counter to everything his grandfather, Henry, who was the 33rd vice president of the U.S. , stood for, said Wallace, adding that government should be about serving the public, not private interests. He added that his organization has been working on ‘mission alignment’ — the term used to convey, for instance, that an organization fighting climate should not invest in companies whose primary product contributes to climate change. Firing Morgan Lewis because of its representation of Trump was a natural extension of that idea, Wallace said.

In an interview, he explained why he believes Morgan Lewis has crossed a line in its representation of Trump, why he disagrees with ethics experts who said the firm was doing its job of zealous advocacy for a client and other issues. Below is a lightly edited transcript.

Big Law Business: How did your organization decide to fire Morgan Lewis?

Wallace: We were worried from the day after the election. We followed all the scholarship by the Brookings institutions ... all the ethics experts warning about the emoluments clause, looking at the incredible complexity of Trump’s businesses.

What really started us thinking about a course of action was the Jan. 11 press conference where Sherri Dillon was saying [Trump] has no intention whatsoever of divesting … that’s a complete non-solution. But we decided to wait anyway, to see if he was going to take any steps as President to avoid conflicts. The evidence to the contrary has piled up as a Mount Everest of conflicts. It’s only getting worse.

We like Morgan Lewis, they have done good work for us. That part didn’t feel right, but as a matter of conscience — our individual and collective conscience — we couldn’t be complicit with what the President is doing.

They were very competent professionals. You don’t want to punish people for doing good work, but we thought it was important to send the message to the firm that some people have higher values.

Big Law Business: But how is this work different from the zealous representation of any client?

Wallace: I’m a lawyer myself and I know that the role is to give zealous representation. One of the articles about our decision compared this to ‘the right to counsel’, that even the most despicable people have the right to an attorney. This feels different.

For attorneys, the obligation of zealous representation is confined to areas within the bounds of law, and if an attorney becomes a part of a client’s illegal enterprise, that is prohibited.

So, for example, I can represent a drug dealer but I cannot help launder his money offshore. Our concern was that this is a completely sham arrangement, of allowing Trump to keep his assets, and allowing his sons to manage them. It crossed the line.

That’s a matter of opinion, it’s never been litigated, but this is not a standard sixth amendment right to counsel situation.What [Sheri Dillon] is enabling Trump to do is violate the constitution by using public office for his own personal gain. A public defender is vindicating the constitution, and a defendant’s right to counsel under the sixth amendment. She is violating the constitution for every single American — their right to have a President with loyalty to the country. Mr Trump’s interests are more divided than any other president — it’s absolutely unprecedented.

[Editor’s Note: Morgan Lewis and Dillon declined to comment. We also reached out to Trump’s press office and will update with any comment.]

Big Law Business: Was there any internal debate in your organization about this decision?

Wallace: We had a good discussion starting after the Jan. 11 press conference. We all agreed that this was a potentially huge problem and started talking about changing law firms. The two things we wanted was to have another legal representation lined up first and then the other was to wait and see if calmer heads would prevail, maybe things wouldn’t be so bad.

We got substitute representation, and it became obvious … that the Emoluments’ clause [the constitutional clause that prohibits U.S. politicians from taking gifts] was going downhill fast. It did take a little time to sort through the issues but there was no opposition on the board.

Big Law Business: Did you find other firms had similar conflicts?

Wallace: There was another D.C. firm that had someone I thought would have been perfect. He’s a top notch lawyer with experience representing non-profits, tax exempt organizations, lots of great scholarship ... and then in the interview we asked him, ‘Your firm doesn’t represent Trump on anything?’ And he said ‘well yeah.’ It turns out theyrepresent the Trump Hotel in trying to reduce the tax bill, and I’m sorry that’s a deal killer — this is a guy who ... is appearing to use public office for personal gain … you are helping this guy dodge taxes. This is not something we are comfortable with.

Our new counsel is a boutique firm that only represents non-profits. They have a set of values that the partners agree on. They assured us they have no Trump connections and their values align with us.

Big Law Business: Is this a critique of big law firms?

Wallace: It’s not a criticism of the big firms. When you have 2,000 lawyers, and you’re relying heavily on clients who are very wealthy, you’re going to come across some ethical issues. Every time you take on a big bad rapacious client, you will lose some clients.

The great thing about big law firms is they can afford to subsidize pro bono programs.The bigger firms can afford to devote big resources to that. There’s been nothing better for pro bono activities and some very progressive causes than big firms.

Big Law Business: Do you know of any other organizations following your lead?

Wallace: No. It’s not my job to try and convince anybody else. This is strictly a cry of conscience. We did what we had to do and it’s up to others to follow their own conscience. I’m not trying to organize a big boycott, [but] we hope all kinds of people will think about their decisions.

This is a crazy time and we all have to examine our conscience for what we are doing. Trump is not just a corporation; he is the government. This ethical conundrum, it’s not just about whether you’re uncomfortable. It’s, ‘Is this going to crash the American democracy and am I complicit in that?’

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