I Quit Skadden When It Gave Trump the Wheel to Steer Pro Bono

Skadden’s commitment of $100 million in pro bono work to causes of interest to President Donald Trump to avoid a punitive order erodes American democracy. It’s why I quit my job as an associate with the firm.

My decision was rooted first and foremost in the belief that giving the president even the optics of power over the legal profession signifies a powerful breakdown in the norms of our democracy. We have a unique responsibility as attorneys to uphold the rule of law, even if it costs us financially.

But I also disagree with the terms of the deal itself, which have been mirrored in deals struck by other firms. Some say that these agreements to provide pro bono services will be a net benefit to society, but not all potential pro bono causes are equal in urgency. Pro bono work currently being done at these firms provides vulnerable people badly needed representation against government oppression. I believe this is one of the most powerful types of advocacy work that we can do as lawyers.

The Trump administration has tried to confuse the issue of who needs pro bono representation the most. An executive order targeting Paul Weiss accused “global law firms” of engaging in pro bono representations that potentially deprive those “who cannot otherwise afford the benefit of top legal talent the access to justice deserved by all.”

But the people with the most pressing need for pro bono representation at this moment in history are those who are subject to the vast power of the government without legal due process, such as immigrants and asylum seekers. Democracy ceases to exist when only those with power are protected by the law.

Some law firm leaders have advanced the position that the pro bono commitments will simply represent a continuation of the pro bono work these firms already do, given that the causes represented will be ones that the president and the firms “both support.”

But pledging a set number of pro bono hours to such causes will potentially mean devoting fewer pro bono hours to causes the president doesn’t support, such as advocacy for transgender rights. Attorneys can only provide a finite number of pro bono hours because they must commit the bulk of their time to billable client work that keeps these firms very profitable.

Moreover, how will the managing partners decide which pro bono representations have support from both the president and the firm? Skadden’s management named “veterans’ assistance” as an example of mutually-acceptable pro bono. But much of the assistance that veterans need on a pro bono basis is adversarial representation against the government to access benefits to which they are entitled. This perhaps will be even more important following the Trump administration’s announced plans to cut 80,000 employees from the Department of Veterans Affairs.

Does suing the government on behalf of a veteran count as a cause supported by the president? Will these firms be willing to sue the government at all as part of their pro bono practices, knowing that the president may resurrect his threat of a punitive executive order? This is the problem with eroding the legal profession’s independence—it’s hard to stop once it begins.

The deal between these firms and the administration will have a profound chilling effect on pro bono work performed by other law firms that have yet to be threatened with presidential might. Watching firm after firm bend the knee to the president, how many other firms that aren’t in the president’s crosshairs at the moment will quietly tell attorneys that they’re unable to take on pro bono work that the president would find objectionable?

A firm’s decision to capitulate instead of using its resources to defend itself against presidential actions sends a message that it can’t challenge the president successfully. The more firms that give in to these threats, the easier it will be for the president to intimidate attorneys and law firms into ceasing pro bono representations that he disagrees with. Lawyers must unite to condemn the president’s attack on the rule of law.

When the most vulnerable members of our society can’t access the legal system because the executive branch has effectively cowed attorneys into submission, we are operating under an authoritarian system rather than a democracy. I hope it’s not too late to reverse course.

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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Brenna Trout Frey is an attorney specializing in mass torts, insurance, and consumer litigation.

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