Adams Case, Big Law Deals Launch Era Rife With Ethical Conflicts

Almost at the same time that US District Judge Dale Ho was dismissing the prosecution of New York City Mayor Eric Adams on April 2, another major law firm agreed to provide volunteer time on causes preferred by President Donald Trump with the understanding that he will go easy on them.

But these events are connected by more than just time. The apparent quid pro quo that doomed the Adams prosecution, and led Ho to rule that the Trump administration shouldn’t be able to hold the threat of continued prosecution of Adams “like the proverbial Sword of Damocles” over the mayor, is precisely the kind of deal these law firms have struck to avoid executive orders damaging their business. Could Big Law’s wheeling and dealing cause greater havoc in the courts than Adams’s case did?

Ho found he had to dismiss the prosecution of Adams in part because there was credible evidence that the Trump administration had dangled the prospect of abandoning the prosecution of the mayor before him to exact future policy concessions from him. Such an abuse of legal process is illegitimate and undermines a criminal defendant’s rights. Ho determined it was appropriate to not just dismiss the case, but to dismiss it “with prejudice”: that is, the Department of Justice couldn’t reinstate it at a later time should it determine Adams wasn’t acceding to the administration’s policy preferences.

The prosecution—and the promise to abandon it—had all the hallmarks of an inappropriate quid pro quo and created a clear conflict that delegitimized the Adams prosecution. When law firms enter into agreements to accede to the demands of the Trump administration, they are creating similar conflicts of interest that threaten the legitimacy of criminal proceedings when they represent defendants in cases brought by the government.

An essential element of our criminal justice system is that criminal defendants are entitled to the effective assistance of counsel under the Sixth Amendment. Case law interpreting that right provides that where a lawyer operates under a conflict of interest, it can taint the proceeding. That means the plea deal or conviction in the case might get thrown out of court.

In order to protect the integrity of their proceedings, when judges know or have reason to know that a potential for a conflict exists, they have an affirmative duty to ensure lawyers appearing before them can provide conflict-free representation.

The fact that law firms have struck agreements with the Trump administration raises serious questions about whether they can provide effective assistance of counsel in cases against the government.

What happens if the Trump administration doesn’t like the way in which a particular case is being litigated by one of these firms? What’s to stop the administration from going back to those firms and telling them they should pull their punches, to not be so aggressive in their representation of a particular client that gets under the president’s skin? These agreements don’t provide any assurances that Trump won’t demand more concessions from the law firms.

To ensure that both federal and state courts across the country are protecting the constitutional rights of the defendants before them, judges now must inquire whether any criminal defense attorney from one of these firms that has cut a deal with the Trump administration is operating under a conflict similar to the one that doomed the Adams prosecution.

The outcome in the Adams case is a stain on the DOJ, and the profession as a whole. But it is just one case. As more firms agree to enter into deals with the administration, the potential mischief such agreements can cause in the courts is exponentially greater than the Adams affair and goes beyond just one case. It’s every case in which lawyers from these firms represent the defendants. As more firms take this path, it will create a significant drain not just on the courts that must conduct this review but also on clients themselves should they have to bear the burden of finding new counsel.

There is one way to prevent this chaos though. Courts should start these inquiries immediately. Should judges find the lawyers operating under real constraints, they should disqualify those lawyers where appropriate.

As firms—and their clients—realize that they can’t enter such agreements without it exacting a real cost, perhaps other firms considering whether they should also cut a deal with the Trump administration will think twice before they do 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.

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Ray Brescia is an author and a professor of law at Albany Law School.

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