Standing Up to Trump Is Good for Big Law’s Business. No, Really

Critics inside and out of the legal profession have derided Paul Weiss’ decision to reach an agreement so President Donald Trump would revoke an executive order punishing the firm for its past political actions and hobbling its ability to represent clients.

Some begrudgingly have accepted the firm’s justification—that the potential to lose business was far too great. But no one should welcome a situation in which lawyers can be cowed by the US government. In fact, a client should seek out lawyers who will fight for their interests and rights without fear that doing so could anger the government.

There are certainly instances when having a good working relationship with one’s adversary can make aspects of litigation or negotiations easier. There may be less bluster, a greater willingness to “get to yes.” It also can mean more pleasant working conditions and more give-and-take, allowing lawyers to work out differences along the edges of disputes, helping focus on the core issues, and addressing them effectively and professionally.

In the high-priced world of Big Law, lawyers often are recruited from government agencies precisely because of their relationships with the government lawyers who might appear on the other side of client disputes. This can take the form of a white-collar criminal defense case before the Department of Justice, an application for a business merger before the Federal Trade Commission, or an energy company looking for regulatory approval for a new power plant from the Environmental Protection Agency.

Clients want lawyers who can handle such cases competently and probably would prefer those who have effective relationships with regulators on the other side of the table.

But no client should want a lawyer whose very claim to fame is that they will capitulate to this administration—or any administration—when the chips are down.

If a government adversary knows the law firm on the other side of the table is more concerned about maintaining its reputation for having a good relationship with the government than winning, what won’t the other side ask for? When will the demands imposed on those lawyers’ clients end? What negotiating power will a lawyer with such a reputation, and for maintaining that reputation, have?

In any negotiation, a lawyer always must present at least a credible threat that they will turn down an offer, go to the mat for a client, take a case to trial, or break off the negotiations. A lawyer who wants to stay in the good graces of the government can’t mount such a credible threat.

It’s fine for a lawyer to have a reputation as an honest broker or a straight shooter. But an advocate who cares more about their reputation and relationships with the powerful than representing their client is antithetical to our adversarial system and inconsistent with legal professional values.

A go-along-to-get-along attitude won’t serve many—if any—clients well. And when push comes to shove, a lawyer concerned with maintaining a reputation as an administration-cowing lawyer isn’t likely to fight for a client’s interests.

We have an adversarial system for a reason. We don’t rely on a centralized power to dictate winners and losers. That isn’t just anathema to democracy—it’s inconsistent with a robust and vibrant market economy where businesses know the rules and can seek recourse in a predictable legal system in which those rules are enforced even-handedly.

When disputes arise, parties need to know that fair procedures and the rule of law will determine their rights and responsibilities. This predictable, rules-based system allows zealous advocates to advance their clients’ interests before an impartial adjudicator. It allows businesses and individuals to operate with an understanding that their conduct will be assessed consistently and fairly.

Our legal system, in which well-heeled parties sometimes game the system, isn’t perfect by any stretch. But it’s far superior to one in which our conduct depends on staying on the right side of government actors. Those lawyers who attempt to explain away their willingness to capitulate to such whims don’t understand that it sends a clear signal: that they’re unlikely to stand up to government actors when fighting the government’s overreaching, aggressive, and even abusive conduct toward their clients.

It is for this reason that any firm trying to justify capitulation to the government pressure over possibly losing clients should ring so hollow. Knowing what’s at stake, informed consumers of legal services should recognize the risks associated with capitulating to governmental overreach, even in the business context, far outweigh their perceived benefits.

Clients should send market signals of their own, showing they prefer lawyers who will fight for them when they need them to, and not care more about remaining in the good graces of the government.

Not many private lawyers or advocates would look forward to having Paul Weiss attorneys on the other side of the negotiating table. But for the first time in its 150-year history, lawyers for the federal government might be all too happy to sit down with them.

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

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

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