Law Firms Can Use Conduct Rule to Push Back on Trump Sanctions

The Trump administration’s consistent message has been that law firms must either fall in line or prepare for an extended fight.

As this battle persists, it’s time to explore the applicability of the American Bar Association rule on professional conduct that prohibits law firms from promising pro bono work to avoid White House sanctions.

On March 2, the Department of Justice moved to voluntarily dismiss its appeal of four decisions, which had struck down Trump’s executive orders for unconstitutionally targeting Perkins Coie, Jenner & Block, WilmerHale and Susman Godfrey.

The administration had sought to suspend the firms’ employees’ security clearances, stop the provision of any government resource to them, restrict government contracting with the firms and with contractors that employ them, and forbidding the hiring of their employees.

The next day, the Justice Department moved, without explanation, to withdraw its motion. The targeted law firms didn’t consent to the withdrawal of the motion, continuing the battle. The US Court of Appeals for the DC Circuit will ultimately sort out these procedural maneuvers and address the constitutional issues.

Trump’s Campaign

Since Trump issued the first executive order targeting Covington & Burling last February, the legal profession has been debating how, if at all, it should respond to Trump’s campaign against disfavored lawyers.

On one side, the founding partners of Keker, Van Nest & Peters—a well-regarded litigation boutique, have implored the profession to rally to the targeted firms’ side and collectively resist the Trump administration’s pressure.

On the other, Paul Weiss—one of the most prestigious white shoe law firms—sent its managing partner to the White House to curry Trump’s favor with the promise of $40 million in free legal services for the president’s preferred causes.

There have been numerous articles assessing the constitutional merits of the executive orders, the problematic rule-of-law implications, and the business realpolitik faced by the targeted firms. But the application of Model Rule 8.4(e) hasn’t been seriously considered.

Under this American Bar Association rule, Paul Weiss and eight other firms could be subject to professional misconduct when they jointly promised almost $1 billion in Trump-directed pro bono services.

The debate over the executive orders have brought in other legal ethics principles, often pointing to the Model Rules of Professional Conduct’s hortatory language about lawyers’ role in securing the rule of law. But those provisions have never created concrete, enforceable duties. Similarly, Model Rule 6.1’s oft-cited call for pro bono services is explicitly aspirational.

In contrast, Model Rule 8.4(e) has an almost 60-year history of enforcement, and disciplinary authorities don’t shy from disbarring attorneys who have violated its three key elements: (1) stating or implying an ability (2) to improperly influence (3) a government official.

The Paul Weiss settlement meets all these elements of Model Rule 8.4(e). In a publicly circulated email, Brad Karp—Paul Weiss’ managing partner at the time—described conversations with many of the firm’s clients who expressed their concern that, regardless of the merits of the executive order, the Trump administration’s disfavor was sufficiently concerning that the clients might have to find other counsel.

Karp sought to assuage these worries, despite Paul Weiss’ insistence that it had done nothing wrong. Even Trump seemed to agree, noting that the settling firms “give me a lot of money considering they’ve done nothing wrong.”

The core of improper influence is when official governmental action turns on factors unrelated to the substantive or procedural issue at hand, regardless if the persuasion takes the form of a bribe, use of personal influence, or any other action. Courts have disciplined lawyers for far less than Paul Weiss’ settlement, such as when a lawyer forwarded a judge’s complimentary email with a hint that the lawyer some special standing.

Model Rule 8.4(e) also solves for the limited remedies for the constitutional claims raised by the law firms in their lawsuits against Trump. Since the US Supreme Court’s 2025 decision in Trump v. CASA effectively killed nationwide injunctions, nonparties (meaning every law firm that hasn’t sued) are left unprotected by the four court orders invalidating Trump’s executive orders against the four firms. Nothing prevents Trump from issuing new orders against either new firms or the already-targeted ones for new reasons.

When asked about whether their agreement provided any protection from Trump’s future orders, a partner at one of the settling firms acknowledged, “Nothing, you know, nothing protects me.” However, Model Rule 8.4(e) prophylactically requires every lawyer to proactively resist Trump’s threats and enticements.

Failure to Rally

The failure of the legal profession to rally against the executive orders reveals a bigger collective-action problem. As Karp’s email set forth, Paul Weiss initially wanted to fight the executive order. Karp found that other firms were unwilling to present a united front. Instead, some rivals tried to exploit Paul Weiss’s vulnerability by poaching its lawyers and clients. Without industry-wide support, Karp concluded that the firm had to settle or risk dissolving.

The professional-conduct rules are adopted in in advance to prevent lawyers from capitulating to acute economic or political pressures. And, thus, the defection of nine major firms suggests, at least, a partial failure of lawyers’ self-regulation.

Still, many firms have fought, with dozens signing onto amicus briefs or otherwise signaling their resistance. This isn’t the first time that governments have targeted law firms for representing disfavored interests. During the 1960s, several southern states brought legal charges against the NAACP and its Legal Defense Fund, ostensibly, for things like failure to register as a foreign corporation or the solicitation of clients.

Those lawyers fought and won, emerging stronger on the other side. Here and now, the firms that have challenged Trump’s executive orders have each succeeded in their respective lawsuits.

Model Rule 8.4(e) covers all US lawyers that are members of the bar. It is regularly enforced. It directly speaks to the settling firms’ behavior. All that remains is for the legal profession to honor the rule by recognizing the ethical imperative to resist improper influence.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Seth Katsuya Endo is an associate professor at Seattle University School of Law where he teaches civil procedure and professional responsibility.

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