Legal Ethics Nerds Weigh In

Last Friday, with little fanfare, the heavyweights of the legal ethics world weighed in. In a case brought by the law firm WilmerHale challenging Donald Trump’s executive order that forbids federal agencies from doing business with the firm, ethics professors filed an amicus brief, advising the court on legal issues as “friends of the court.”

It’s just lawyers, you might be thinking right now. And that’s true, this is about the executive orders Trump is using to try and extract obedience from the legal profession.

But the issue matters beyond the big law firms. Trump probably assumed people would have little sympathy for them, making it easy for him to pull it off. This is ground zero for the battle between autocracy and democracy, the question of whether a president can strip away people’s rights at a whim. Trump is willing to win that battle by abusing the levers of power he controls as president. With the persistence of a toddler who shuts his eyes and pretends something doesn’t exist, Trump wishes the Constitution and the rule of law out of existence, with the complicity of people around him who are willing to parse the law into nonsense in his service.

Lawyers have more tools to resist than most people, so when they don’t, that’s bad news for all of us. But some of them are resisting, like the good folks at WilmerHale (full disclosure, I have close friends among them), and this brief is worth our time because of that.

Amici have to ask the court for permission to file a brief with the court. They do so here, explaining that their brief is offered by law professors who are “scholars dedicated to studying the ethical questions that arise when lawyers weigh their duties to clients, the courts, and society writ large—and teachers who introduce aspiring lawyers to ethical rules and norms.” They note that “As a group…they believe that lawyers must be free to exercise their own independent judgment in resolving these issues without coercive interference by the federal government.” The five law professors are George M. Cohen at UVA, Susan P. Koniak at Boston University, Jonah E. Perlin at Georgetown, Mitt Regan at Georgetown, and Bradley Wendel at Cornell Law School.

They make three simple, but devastating, arguments:

• The law firms that gave in to Trump’s demands to avoid his executive orders have created a conflict of interest for their lawyers. Those lawyers are required to zealously represent their clients, but now, they have to “weigh the potential costs to their firms of displeasing the administration” against that duty. There is a conflict of interest in every case where the government is a party—every criminal case and many civil ones. Even when the government isn’t formally a party, the government (or this president) may have interests at stake. In other words, it’s a lose-lose situation for the lawyers, who are prohibited from participating in cases where they have a conflict of interest, but who will be unable to avoid such conflicts. “Lawyers at firms that have entered into agreements with the President…will be placed in an ethical catch-22: duty-bound to speak honestly and fully to the court under threat of sanctions, on the one hand, and facing severe consequences that may imperil their firm and the interests of their clients, on the other.”

• Those firms may have violated federal anti-bribery laws. The brief points out that the law firms may fall within what counts as bribery under federal law: offering or promising something of value to a federal official in hopes of influencing an official act—here, withdrawing the executive orders against the firms. The brief concludes that “Notwithstanding that the Department of Justice is unlikely to investigate firms that enter into deals crafted by the President, the fact that firms are being pressured—arguably extorted—to engage in behavior that could be perceived as violating federal bribery law further emphasizes the magnitude of the ethical problems these orders create.”

• Trump’s gamesmanship threatens the historic independence of the legal profession and the rule of law. The judicial branch can’t do its job of checking the other two branches of government without lawyers to bring cases before it. “To accomplish this, the judiciary needs an independent bar comprising lawyers willing and able to freely and fiercely advocate for every party to a dispute.” At bottom, if lawyers are afraid to represent certain clients, then the rule of law is undercut. The brief points out that “In recent years, autocratic leaders in Belarus, Turkey, and Iran have attacked lawyers to cement and maintain authoritarian regimes.” The independence of the judiciary depends upon the independence of the lawyers who appear in front of it. Trump’s executive orders are an effort to damage, if not destroy, it.

Trump’s efforts to take away independence from lawyers are, in truth, an effort to undercut the effectiveness of the judiciary as a check on the executive branch. This is just the beginning. As we discussed Sunday night, where it starts is not where it ends. A law firm may agree to certain conditions today, but that doesn’t mean Trump can’t come in with more demands down the road—demands that if unmet will result in imposing the sanctions he threatened them with in the first place. The amici write, “A firm that can survive only by staying in the President’s good graces has incentives that conflict with its lawyers’ stringent fiduciary duties to remain loyal to the interests of their clients, exercise independent judgment, and be truthful and candid in all dealings with the courts. These ethical issues will persist as long as the executive orders are enforceable: however a firm responds to the administration’s demands, the President can always declare a firm noncompliant and impose further sanctions.”

That’s the problem that plagues not only law firms but everyone else who tries to cut a deal with this president. Once you’ve bent the knee to the bully, you’re at his mercy forevermore. He can always come back to demand more. You’ve already demonstrated your weakness. Law firms shouldn’t have to debate whether they represent their clients zealously or stay in the president’s good graces. Courts shouldn’t have to worry about currying favor with the current occupant of the White House instead of following the facts and the law. But that’s how this president operates. Here’s one case where the Supreme Court can stand up directly for the rule of law as lower courts have already begun to—every court to consider issues related to these orders so far has ruled against the administration. The sooner the most capable people in our country stand up to him, the sooner we can begin our comeback.

There will undoubtedly be an onslaught of news today and for the rest of this week, and we’ll follow it closely. But it’s also important for us to try and take in the bigger picture some days, too, as we are tonight. Thank you for reading Civil Discourse and being here with me. As Americans, we’re all trying to do our best to help save our democracy right now. I try to address that question in different ways every time I write to you, whether it’s by keeping you informed or with specific suggestions. Your paid subscriptions really help me devote the time and resources necessary to write the newsletter, and I appreciate your support. I’m grateful to everyone who takes the time to read and think and make sure they’re informed and ready for the fight.

We’re in this together,

Joyce