GCs Face Tough Choices When Trump Targets Their Outside Law Firm

There’s fear in Big Law right now over Trump’s moves against the legal profession, and indecision over how to respond. Capitulate, as Paul Weiss did just days after being targeted? Or fire back with a lawsuit, as Perkins Coie did.

As an in-house lawyer or general counsel, you aren’t simply a spectator—you have your own significant decisions to make about how your legal department will get involved in the looming legal showdown.

First, we increasingly will see law firms choose a side—there will be firms that actively seek to benefit from their ties to the Trump administration, those who intentionally shy away from the conflict, such as Paul Weiss, and those who fight.

Some firms will speak up to support other firms who are in Trump’s crosshairs, either through amicus briefs or public statements or legal advice, and some will stay silent, fearful of the consequences. Should you continue to use firms who challenge the Trump administration, or even move your business to those firms in a sign of support?

Trump is a vengeful man who may take the view that the friends of his enemies are also his enemies, and companies that use the “wrong” law firms may find themselves targeted as well.

The answer to that question depends on your values, and your company’s values, and it requires a bigger discussion with your executive team and board. You have an obligation to your shareholders and other stakeholders, and supporting a firm that actively challenges the administration, or is targeted by the administration, carries risk.

If your business depends on federal contracts or cultivating relationships with the federal government, your choice of counsel increasingly may take on great significance. How much risk are you willing to take to stand with a law firm you want to work with? Can your firm be effective if they can’t enter a federal building, or even engage with federal employees?

You may respect the firm’s courage and detest the idea of working with another firm whose values aren’t aligned with your personal beliefs. But you also must consider how much pain your business will endure to do what feels like the right thing, and whether your first-choice counsel can get the work done in this environment—you should get internal alignment when making this kind of call.
Perkins Coie will lose clients, I suspect. But I also suspect the firm will attract as many who want to support it for its leading role in challenging the president.

And there’s a bigger set of questions around your voice. Do you use your position as a legal leader to speak up about what you’re seeing? Do you work through associations, or form them, to express your views on what’s happening to the rule of law—there’s some level of safety in numbers, and the opportunity to have greater impact with a larger group, a louder chorus.

Trump has moved aggressively against Big Law, issuing executive orders that placed restrictions on several law firms that handled matters antagonistic to him over the last 10 years, and sending letters to 20 Big Law firms over their DEI policies.

Challenge Trump at your peril—his latest memorandum threatens sanctions against law firms that engage in “frivolous, unreasonable and vexatious litigation” against the US.

Trump’s efforts to intimidate lawyers become more challenging with each additional lawyer who speaks up. Again, this is a discussion that in-house legal leaders should have with the rest of the executive team—they should understand that as an attorney, you have a higher obligation to uphold the Constitution and support the rule of law. There may be consequences to taking a public stand, and not every company will be supportive. But silence has a price too.

There always will be lawyers willing to step up and take on the administration. Trump’s biggest challenge in his war on the law are the judges, who have the power and independence to at least slow down his agenda—and Trump doesn’t like it.

When US District Judge James Boasberg ruled against one of Trump’s deportation policies, Trump responded by suggesting that Boasberg was “crooked” and called for his impeachment. Boasberg isn’t alone—other federal judges, so called “bad judges,” have ruled that an array of Trump’s actions violated the law, drawing the wrath of Trump and his followers.

We’re headed for a series of showdowns around the power of the president, and the forum will likely be the US Supreme Court for many of them, whose 6-3 conservative majority includes three of his own appointments. Yet the court also understands, better than any other group, the importance of checks and balances, the rule of law and separation of powers. There are signs that the judiciary may be willing to stand up to Trump. In response to Trump’s criticism of Boasberg, Chief Justice John Roberts issued a rare rebuke, noting that the right course for challenging a court ruling was to appeal, not call for impeachment.

Martin Luther King, Jr. said it best: “In the end, we will remember not the words of our enemies, but the silence of our friends.” There’s a bigger picture here, a long-term view, and the world will have a long memory about how each company, each law firm, each attorney responded when it was hard to do the right thing.

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor and he writes on in-house, corporate, and ethics issues.

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