Over the last several weeks President Donald Trump has taken aim at some of the country’s largest law firms through the use of executive orders. These orders include actions such as stripping the firms’ security clearances, barring access to federal buildings, and terminating federal contracts held by the firms. According to the Free Speech Center at Middle Tennessee State University, the orders accuse the firms of being, “dishonest and engaging in litigation and conduct he declared was detrimental to American interests.” And the Center says some of the orders attack the firms for their diversity, equity, and inclusion policies.
In the wake of these orders, some of the firms have struck deals with the administration allowing them to continue their regular work in exchange for what in some cases amounts to hundres of millions of dollars in pro bono work. The Associated Press reports Kirkland & Ellis LLP; Allen Overy Shearman Sterling US LLP; Simpson Thacher & Bartlett LLP; and Latham & Watkins LLP would each provide $125 million in free legal work for causes including veterans’ affairs and combatting antisemitism.
For the Jewish people, adherence to the rule of law has deep and historic roots. Rabbi Shana Mackler of The Temple, says Jews are a people who are deeply rooted in law, both divine law but also civil law. “When we go back we can realize that our tradition actually begins not with some mythic hero, but with a covenant, which is a legal and moral framework that tradition believes was handed down at Sinai.” She says the Torah is a legal blueprint for building a just society and detailing accountability.
Barbara Mayden, now retired from law practice, has been a member of the American Bar Association’s House of Delegates for over 30 years and currently co-chairs the ABA’s Task Force to Combat Antisemitism. She also practiced at Skadden Arps and Willkie Farr & Gallagher, two of the firms targeted by the administration and two who struck deals. She says the executive orders take aim at the heart of the profession. “At all of these firms I would say there is a similar culture of promoting rule of law, of promoting an independent judiciary and the independence of lawyers.”
Mayden says a core value of law practice is to take a case whether or not it is popular. “That’s a basic tenet of the profession,” she says, “Especially the pro bono work you take. You do it regardless of the popularity of the cause.” For example, she says the Skadden Fellows program is designed to train new lawyers on sometimes unpopular causes.
Local attorney David Raybin, of the law firm Raybin & Weissman, agrees and says lawyers are duty bound to represent their clients, and now the larger firms are facing what he says is retribution by the president. “The attacks on these firms that, ‘We’ll take away your clients unless you repent,’ is unprecedented in our system. That you have this revenge attack on lawyers who are basically doing their job. We represent the client, and we advocate for them, but we don’t necessarily subscribe to all their beliefs.” He says the overall effect will be to deter people from acquiring the lawyers of their choosing.
Mayden says the firms who capitulated did so because the price of not giving in was just too high. “They’re very scary threats that were waved at them. As lawyers you’re going to be blocked from going into federal buildings. Blocked from access to federal officials.” She says she believes the firms were afraid of the enormity of the fiscal consequences.
But Mayden says the firms had a choice, “They could cave, which many of them did. Or they could look at this as an attack on the profession, as an attack on the rule of law. You can either acquiesce or you can fight back.” She says the executive orders are attacks on the rule of law and an overreach of federal power, “And you could choose instead, as good law firms should be able to do, to fight back.”
Some firms have fought back and sued the administration, winning injunctions. But it remains to be seen what the long-term ramifications will be. Mayden says there could be a shift in personnel as dissatisfied partners leave and go elsewhere, taking clients with them. She says there have also been some unexpected voices. “What’s been interesting and very rewarding is some of these associates at Skadden and at others have very publicly spoken up and resigned.”
Rabbi Mackler says those dissenting voices are essential to a free society. “When you have legal systems that are being challenged, or court rulings that are being ignored, that to us is a litmus test. We can see that societies that are committed to the integrity of law are the ones that will survive.”
Local attorneys say they, too, are feeling the pressure. Irwin Venick is a partner at Venick, Austin & Rosen. He says for firms that do not have national practices or are engaged in federal litigation, the impact day to day is minimal. But he says there is great concern for what is happening in those bigger firms. “Those firms that have been targeted by the administration with fairly severe and probably illegal limitations on their practice.” What is most disturbing he says, is the big firms that have chosen profit over principle. “It’s a pretty major capitulation and there’s been a fair amount of writing about how this puts these firms in an ethical bind.” He adds that these agreements are being negotiated by President Trump’s personal attorney, not by the administration.
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Venick says his practice, which includes nonprofit organizations that receive federal funding, is already feeling some of the trickle-down effects. “A lot of my time now is being spent with counseling them on how to deal with things on their websites that are related to the services they provide, to policies and procedures that are within their scope of operation.” He adds that those service providers with undocumented clientele have additional concerns, “How to deal with the imminent and feared approach of ICE and the police in terms of protecting their patients, protecting their privacy and not putting themselves in jeopardy.”
For immigration attorney Greg Siskind, the administration’s approach to immigration in this second term is not entirely new. And he says this time around both sides are better prepared. “The last time most immigration lawyers didn’t have any federal court room experience. They either handled things administratively or they went to immigration court which is not federal court.”
Siskind says his experience with the first Trump administration, and with Covid, provided a steep learning curve. He says the current use of “invasion language” is an effort to avoid the law. “They’re trying to do things that bypass due process that people are entitled to, or judicial review by the courts, or the Administrative Procedures Act.”
The result, says Siskind, is another spate of lawsuits. “Even in the last couple days, there have been cases in Nashville of students who’ve had their status reversed, and there have been a ton of them in Memphis.” He says this is an example of the actions ICE is taking toward deporting foreign students. There are other more detailed examples. “ICE is combing police records, but police records don’t record someone’s immigration status, they just record their name and their information. We think they’re just catching people by their name being the same as someone in the same geographic area and making the assumption that this must be the same person because they have this foreign sounding name and they’re in the same area.” Siskind says many people are being misidentified, leading to several hundred cases being filed nationally, and his firm is preparing to file several as well.
Siskind says all these issues are in addition to his regular immigration practice, and many of his clients who are naturalized citizens are worried. “They don’t know whether the government will abide by the rule of law. Will they be able to go back and undo my naturalization?”
According to both Siskind and Raybin, the uncertainty surrounding immigration cases is part and parcel of the overall uncertainty permeating the legal system and the practice of law. Raybin says another top concern is the speed with which the changes are happening. “Now you’re having a wholesale attack on the checks and balances very, very quickly. It is destabilizing. I think government works best and society works best when things are predictable.”
Siskind is also concerned about the use of the rule of law as a means of combatting antisemitism, “I feel like in a lot of cases the Jewish community is being used to advance all kinds of other political goals. And one day that can really come back to haunt the community where we end up getting blamed for sending America down this path.”
Rabbi Mackler says it is precisely the belief that the law is sacred that has helped the Jewish people survive. “As a people living in diaspora, we have relied on that rule of law to ensure our safety and our dignity. We know that when justice systems are fair and independent the Jewish communities around the world can flourish.”
