I Saw Lawyers Stand Up Against the State—We Need Them to Again

The legal profession is under siege to a degree and from a source unprecedented in American history. The issue is whether the nature of the profession as we have known it will be changed forever.

The answer to the question is partly in the hands of the profession itself and partly in the hands of the federal courts. Because of the current makeup of the US Supreme Court, the outcome is far from certain.

President Donald Trump has targeted a number of law firms with retaliatory sanctions. This cavalcade of presidential decrees seeks to bar law firms from representing the interests of clients before government agencies and imposes draconian penalties on clients who exercise their right to choose these firms as their own trusted counsel in challenging government actions or in pursuing their interests in dealing with government agencies.

Several of the targeted firms, including Perkins Coie, Covington, and WilmerHale, have chosen to battle the president in court, and temporary restraining orders have been granted in their favor. Others, including Paul Weiss, Skadden, Willkie Farr & Gallagher, and Milbank chose to capitulate, some even under mere threat of being blackballed.

As part of their deals with the president, the firms agreed to divert massive amounts of supposed “pro bono” time to causes that the president personally prefers rather than the disfavored causes and clients that piqued his wrath.

On behalf of a group of my fellow former presidents of the District of Columbia Bar, I drafted an amici curiae brief in the Perkins Coie litigation, supporting its motion for summary judgment. I developed four major themes:

First, the adversary system is an essential element of the legal order established by the Constitution and depends on the effective functioning of an independent bar.

Second, the right to select counsel of one’s own choice is an indispensable corollary of this constitutional order.

Third, under this constitutional order, no government official may punish or blackball a lawyer or law firm simply for vigorously representing a client or cause that the official dislikes.

Fourth, government retaliation against lawyers and law firms distorts the system of pro bono representation that is vital to the functioning of the system of justice administered by Article III courts.

Subsequent briefs from other groups included a brief as amici curiae on behalf of more than 500 firms throughout the country. However, what was most notable was that very few of the major law firms—those most worried about getting into the president’s crosshairs—had the courage to sign on. Unfortunately, the two international firms in which I had been a partner were among the no-shows.

Big law firms’ attempts to try to hide in the weeds is a sorry story of putting profits above principles. Some of the major firms who used to boast about taking on the causes of the downtrodden and the friendless have succumbed to the president and shifted their focus to his pet causes as the price of buying his protection.

By contrast, our profession is at its finest when lawyers are not only free to take on unpopular causes but are willing to do so despite financial costs and misguided disdain.

There are many examples of this, but my favorite is a personal one. In 1968, I was a young lawyer in the US solicitor general’s office, having been hired by Solicitor General Thurgood Marshall right before he ascended to the Supreme Court. That year, a Black civil rights lawyer, Eleanor Holmes Norton, whom I knew personally (her husband was a law school classmate of mine, and we had recently attended their wedding) appeared before the Supreme Court to argue on behalf of a white supremacist group that had been barred from holding a rally in Maryland.

In another case, she went into a local New York City court to defend the First Amendment right of segregationist Alabama Gov. George Wallace to hold a rally at Shea Stadium, after city authorities had barred this controversial figure from appearing.

It is essential to the functioning of the legal system under our constitutional order that lawyers be allowed to represent clients who may be unpopular or even condemned in the eyes of others. That principle applies to the right of law firms to represent corporate clients, or pro bono causes, or political candidates. Any action by anyone, especially the head of the executive branch, that undermines the proper functioning of the adversary system is fundamentally anti-constitutional.

Yet, too many law firms are unwilling to stand up for their own rights. When a large and powerful firm shrinks in the face of blatantly unconstitutional threats, what confidence should their clients have in the firms’ willingness to represent their interests “zealously” under “the rules of the adversary system”?

Jenner & Block hit the right note in explaining why they refused to knuckle under: “All of our clients deserve lawyers who are unafraid to go to court, stand up for their constitutional interests, and deliver the ardent representation they deserve.”

But will this struggle to defend the constitutional rights of lawyers and their clients prevail? I wish that I could be as confident about the outcome as I am of the soundness of the constitutional arguments being advanced. After all, we now have a Supreme Court that decided last year to create constitutional immunity for presidents as the embodiment of an all-powerful executive, despite clear constitutional text and in defiance of elementary history of the founding of our anti-monarchial Republic.

Maybe, when the integrity of the American legal system itself is at stake, even this court may tell the president that he just has gone too far. I hope so.

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

Author Information

Philip Allen Lacovara was deputy solicitor general of the US for criminal and national security matters, counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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