Big Law’s Blacklist Reckoning Will Mark Firms for a Generation

The differences that are emerging among major law firms about how to respond to the blacklisting executive orders are likely to polarize and deeply divide the legal profession for a generation.

First, there is a stark division among the firms that were blacklisted or anticipated that they would soon be. Three major firms, blacklisted by the White House, have now challenged the blacklisting, represented by three additional firms that have chosen to run the risks involved. Four firms have taken a very different course, opting to make a deal to avoid blacklisting.

The roster of firms on each side is likely to increase. Recent executive orders proclaim a broad intent to undermine “global” “Big Law” firms for handling cases the administration dislikes. Some targets of any future executive orders will fight, others may settle. And there are reports that not-yet-blacklisted firms are currently negotiating with the White House to enter into preemptive deals to avoid blacklisting.

Law firms may well regard these settlements as having encouraged the administration to continue and expand the blacklisting.

Second, at some point, there will be a major law firm amicus brief in support of those challenging the blacklisting. The firms that have the courage to join in that brief may reasonably feel that they are in greater jeopardy of official reprisal because other firms remain on the sidelines. After all, if all of the largest 25 or 50 firms signed such a brief, the administration would not have a basis for singling out any particular firm.

Third, firms that poach clients or attorneys from those that are challenging the blacklisting, or that have incurred the wrath of the administration for joining an amicus brief, will rightfully be resented by those who lose clients or lawyers. To the extent that clients or attorneys leave firms that are in disfavor with the administration, there may be disputes about whether this was the result of affirmative poaching. As a practical matter, firms that have made deals with the administration, and those that have remained cautiously on the sidelines, will—even without doing anything further—be able to benefit from the perilous circumstances of their more confrontational peers.

Fourth, decisions that deal-making firms make to avoid controversial cases or clients are likely to be scrutinized for evidence that those firms are trying to curry favor with the Trump administration or are acting pursuant to some unspoken understanding.

These emerging differences among the large firms may affect the comparative willingness of firms to handle cases challenging the legality of other Trump administration actions. Until now, most large firms have declined to get involved in those disputes, wary of provoking the administration. But once a firm has challenged the blacklisting, as either a plaintiff or counsel, it may conclude that involvement in another lawsuit against the government couldn’t make things any worse. On the other hand, firms that opted to make deals will probably be unwilling to undermine the “constructive relationship” with the administration for which they may have paid dearly.

Trump has inflamed this situation by denigrating law firms that are making deals. “They are all bending and saying, ‘Sir, thank you very much. . . . Where do I sign?’” The lawyers who have reached or are negotiating deals are probably too closely aligned with the administration to publicly dispute that demeaning account. And critics of the deals may well regard Trump’s statements as confirming their worst fears.

Major large firms’ choices today will help define those firms for decades. The firms that opt to challenge government blacklisting will be regarded as courageous by some, and as reckless by others. The firms that settle will be seen as pragmatic by some, but as unprincipled by others. In the future, attorneys and clients will, to varying degrees, choose to join, remain at, leave, hire, or dismiss major law firms based on what positions and actions those firms took in response to the Trump blacklisting.

It’s impossible to foresee how many firms will fall into which camps, or how lawyers and clients will respond to those differences, but an important early indicator of what lies ahead may come in the months ahead, as law school on-campus interviews and hiring occur. Law students may seek out the firms with whose conduct they agree, and avoid firms whose actions they regard as impolitic or unprincipled. Recruiters may find themselves spending much of their time explaining how their firms chose to respond to the blacklisting.

No senior partner wanted to bet even part of the firm on which side to pick in this historic dispute. But for those faced with that choice, it’s important to bear in mind that in the long term, whether a firm withers or thrives is going to depend not only on what may occur in the Oval Office, at the headquarters of large corporate clients, and in the courts, but also on what is happening in the nation’s law schools where the next generation of lawyers is watching.

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

Eric Schnapper, a professor at the University of Washington School of Law, previously worked for 25 years as an attorney for the NAACP Legal Defense and Educational Fund Inc.

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