An Open Letter to America’s Law Firms
Our profession must organize, not capitulate.
Since the start of his second term, President Trump has issued or threatened to issue executive orders against over a dozen AmLaw top 200 U.S. firms. They order federal agencies to sanction these firms for actions that the president found objectionable, including serving as counsel to Hillary Clinton in her 2016 presidential campaign, hiring lawyers who participated in the special counsel’s investigation of the January 6 storming of the U.S. Capitol, and providing legal services to the Democratic National Committee and non-profits that the president has condemned.
The orders direct the government to terminate all federal contracts with these firms; bar all federal government entities from contracting with these firms in the future; ban attorneys from these firms from entering any federal buildings; and take other punitive actions against these firms, their lawyers, and those who do business with them.
Four of those firms have sued the Trump administration over these orders and have won temporary restraining orders against the president’s actions. They have received amicus support from over 800 other firms, including 17 in the AmLaw 200. The courts found that these firms were likely to prove that the president’s actions are illegal, unconstitutional, and unenforceable. As one judge explained: “The framers of our Constitution would see this as a shocking abuse of power.”
The 21 AmLaw 200 firms who have chosen to fight stand in contrast to the 170 firms who have taken no position at all. Meanwhile, faced with the threat of executive orders and a prolonged battle with the president, nine firms have now entered into agreements with the White House rather than fight. These firms have acquiesced to disclaiming any diversity, equity, or inclusion policies in their hiring, to allowing the president to dictate their practices and policies, and collectively to provide the president nearly a billion dollars worth of free legal services to represent positions he favors. They have done this despite the corrosive effect of these agreements on the rule of law, the legal profession, and our democratic system of justice.
I’ve been a senior partner at two firms listed in the AmLaw 200, president of both the California State Bar and the Bar Association of San Francisco, a law clerk to the chief justice of the United States Supreme Court, and Special Counsel to the President. I never imagined that I’d need to issue an open letter like this, but today the legal profession and the rule of law that it is sworn to uphold are at grave risk.
That is why I have joined with three legal associations—Lawyers Defending American Democracy (LDAD), Lawyers Allied Under Rule of Law (LAUROL), and The Steady State—to deliver this letter to America’s leading law firms. Together, these associations represent over a thousand lawyers who have worked at the highest levels of the profession including as senior partners in AmLaw 200 firms, judges, state attorneys general, senior Justice Department officials, general counsels of Fortune 500 Companies, and state bar presidents.
We call on the 170 undeclared AmLaw 200 firms to avoid the path of those now notorious nine. We call on them to convene—as a group—to create a unified response to the president’s unconstitutional actions and threats to the rule of law and system of justice.
If you are one of these firms, we ask you to recognize that the threatened executive edicts are neither legal nor enforceable. They are a tactic designed to enlist you in undermining the rule of law. Any concession by your prestigious firms will only help the administration intimidate the legal profession and prevent it from challenging its actions.
We ask you to recognize that participating in the administration’s efforts to pick off individual firms and negotiate with them individually is futile, harmful, and unnecessary. The justice system requires that firms set aside their natural competition and coalesce as a profession at this critical moment.
Negotiations With The Administration Are Futile, Harmful, and Unnecessary
As lawyers, we believe that disputes can be settled on reasonable terms. However, there exist no reasonable terms for resolving this particular dispute. The president’s actions are retribution against law firms that have represented causes or clients that the administration disfavors. There is no argument in law, fact, logic, or reason that will cause the White House to withdraw these demands, and agreeing to “negotiate” about how much the government can use your firm to advance its agenda is collaboration in the abuse of power.
Indeed, the only “discussion” the administration wants is on the terms of surrender. Individual negotiation is designed to isolate, intimidate, and extract concessions. The real objective is to send a message that even the wealthiest and most powerful law firms in America will not stand up to the president’s demands.
You have only one real choice: capitulate or fight.
Any assertions by the nine firm leaders to justify their actions as a preservation of their firms’ values and an act of loyalty to their clients does not hold up to scrutiny. And neither does the peace and security they believe they have won. As lawyers, we owe a duty of loyalty to our clients, to the profession, and to upholding the law. Negotiations harm all three.
First, negotiating and capitulating undermines your credibility and integrity with your clients. It demonstrates that you tolerate the unlawful actions and tactics directed at you. It shows that you are willing to negotiate on the other side’s terms.
Second, as several professors of legal ethics have pointed out, the president’s actions may amount to extortion, and those who submit may be in violation of the ethics rules governing our profession. The agreements may also constitute violation of anti-bribery laws by offering something of value to a federal official in hopes of influencing an official act. Failing to oppose these orders deprives the courts of the opportunity to fulfill their responsibility of checking constitutional and legal violations.
Third, negotiation shows that you are willing to take actions that undermine the profession whose fundamental values you swore an oath to uphold. The administration’s strategy appears to be to isolate each firm and play them against one another. Firms understand the threat hanging over these negotiations: capitulate, or the president will use his unlimited resources to destroy you. Don’t align with others, don’t fight back, just take the same deal your competitors have already taken, quickly.
These threats reveal the administration’s own fear. They don’t want you in court, because they will lose. They are afraid to find out what happens if you and other firms stand together as a profession. In short, as long as you are in that room negotiating, alone, you are negotiating on their terms. And more importantly, as long as you are in that room, you are not in court, where you belong.
The Long-Term Consequences of Capitulation Are Worse Than Any Short-Term Pain
If you enter into an agreement with the administration, there may be temporary relief from the things you fear—but that relief will not last. None of the agreements executed so far guarantee any of these firms that they can live free from more shakedowns in the future.
In fact, the terms are so vague that once you submit you’ll always be at risk of violating your “agreement.” Your conflicts, pro bono, and hiring committees will live under the shadow of the president’s interpretation of your “agreement,” impacting the selection of clients you represent, lawyers you recruit, and the values that make your firm special.
Your firm will forever be redefined. Your rivals will point to you as a profile of cowardice and ask how any client could trust you after succumbing to powerful interests without a fight. You will forever be listed with a small group of the most privileged firms in this country who betrayed the principles that lawyers and clients must be free to choose one another; that all people appearing in our courts are entitled to the best advocacy their counsel can offer; and that lawyers and their firms must stand up for the rule of law, even when it is not in their own financial interests. Reputations take decades to build and only one fateful decision to destroy.
This is the very advice you’d give a client who was in your own situation. You would tell them that they should not capitulate to baseless legal claims. And you would assure them that the lawyers in your firm are prepared to endure the hardship necessary to provide them the best defense.
A Final Request
Despite our different backgrounds, party affiliations, firms, and life experiences, the oath we swore as members of this profession binds us together. We assume responsibility that goes beyond our firms’ bottom line and our clients’ outcomes. We are officers of the court, with shared responsibility for the justice system and the law itself.
If we don’t fight for the principles that we have devoted our professional lives to—and that make us a free society—those principles will be forever compromised. We respectfully ask that your firms join with others to meet, to create a shared resolve, and to implement a common strategy.
At another dangerous time in our nation’s history, Abraham Lincoln stated: “a house divided against itself cannot stand.” It is time for the country’s major law firms to unite the profession to stand together to preserve the independence of the legal profession, the Constitution, and the rule of law.
Jeff Bleich served as U.S. Ambassador to Australia and Special Counsel to the President of the United States. He is Chair of the Centre on Democracy and Disruptive Technologies at Flinders University and a Visiting Scholar at Stanford’s Center for Advanced Study in the Behavioral Sciences.
A version of this piece first appeared on Jeff Bleich’s Substack.
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Watching blue-blood outfits like Skadden Arps debase themselves by licking Trump's boots gives me my minimum daily requirement of schadenfreude - and then some.
I may have been a ragged hunter-gatherer of a lawyer by their Olympian standards, but at least I didn't compromise my integrity by doing something like paying protection money in pro-bono hours to a gangster who is running a protection racket from the Oval Office.
Ah Jeffie... you are a political activist in attorney clothing advocating attorneys be activists and not just lawyers. Sorry, but you cannot be a political activist and also be a moral and ethical attorney.