When Law Firms Cave To Authoritarian Tactics

Just Security Article – BTH Vol. 3.3.c

The New “Blacklists” Work When Law Firms Stay Silent

By Andrew Weissmann

In a recent internal memo, Brad Karp, the chairman of Paul, Weiss, Rifkind, Wharton & Garrison, defended the firm’s refusal to challenge a presidential executive order targeting the entire partnership. He suggested that to do so would violate a law firm’s ethical duty to its clients, by damaging the firm’s relationship with the administration in power. And lest one judge too harshly, Karp offered that critics can’t appreciate what it’s like to be targeted by a presidential executive order until it happens to them.

I do appreciate the difficult situation. I have been the subject of such an executive order and know what it feels like when the immense power of the presidency is used to harass and intimidate. The right response is not appeasement or silence —especially when the executive action is unconstitutional as violative of the First Amendment. Capitulation serves as a clarion call to further such improper action by this administration, and a permission structure to other firms to follow this path of least resistance.

What makes this moment so devastating to those in the legal profession – and with far-reaching ramifications to our entire legal system — is that Brad Karp and other lawyers at Paul, Weiss are among the finest in the country. I know first-hand that they are brilliant, accomplished, ethical, and deeply experienced. That’s what makes the firm’s act of institutional appeasement so ruinous. If those with the most professional capital and credibility won’t take a stand when constitutional principles are under threat, who will?

Karp’s memo, while couched in the language of professional ethics, carries a subtext that should concern every lawyer and citizen who values the independence of the legal profession: that maintaining particular clients is more important than defending your firm’s lawful actions on the merits and speaking out against improper behavior on the part of the administration, even in the face of government action that has been found by a federal court to be unconstitutional. In the Perkins Coie case, another firm targeted by Trump in an executive order, which was litigated only a few weeks earlier in the same jurisdiction, the stakes were stated clearly: “The chilling effect of this executive order threatens to undermine our entire legal system and the ability of all individuals to access justice in the American judicial system,” Judge Beryl Howell said.

And Karp’s argument that the firm had “first and foremost” a duty to its clients to maintain good relations with the administration is hard to swallow. Tell that to all the firm clients suing the government or being sued by the government. Indeed, law firms routinely sue the federal government. They represent clients who challenge executive overreach, regulatory enforcement, and constitutional violations. And they take on, as they have a right to, pro bono work that can be highly partisan. And, of course, law firms routinely represent people and companies sued by the government.

That adversarial posture is not a deviation from legal ethics — it’s a fulfillment of them. Indeed, it is necessary if a society is to be capable of upholding the rule of law. Is Karp suggesting his peer law firms like Perkins Coie violated their duties to their clients by their ability to have access to the legal system regardless of whether they are being sued by or are suing the government? Or for vindicating the company’s First Amendment rights in court?

In a functioning democracy, lawyers serve the law first, not the preferences of those in power. Just last year, the far right was deploring the Biden administration’s efforts to bludgeon private sector actors into curtailing their actions and speech—that resulted in a Supreme Court decision in Murthy v. Missouri that affirmed the legal principle that our government cannot do so, but found a lack of evidence that the Biden administration was engaged in such conduct. Now that Trump is in office, the shoe is on the other foot, and such browbeating is the coin of the realm.

The forces behind the Murthy lawsuit against the Biden administration’s alleged overreach were not cowed into submission, nor should they have been to the extent that they sought to vindicate a good faith legal and factual claim. Nor was Perkins Coie cowed when it successfully challenged the current administration’s unlawful and improper actions.

There is a sad and long history in this country of people and institutions choosing Karp’s path, one of least resistance, in moments of crisis. During the McCarthy era, many rationalized their complicity in enforcing blacklists and loyalty purges as fiscally prudent, or were simply too afraid to speak out and be the next victim of oppressive government actors. Paul, Weiss will be remembered as one such victim of a new era of blacklisting.

But the legal profession cannot afford to remain silent. The threats to the rule of law, if not to our democracy, are not theoretical. We have seen efforts to undermine elections, to use the law as a tool of retribution, to erode foundational constitutional protections. In such times, lawyers — especially those in positions of influence — have a responsibility to represent those being victimized and to speak up. Not to accommodate.

Whether the market will punish Paul, Weiss for its chosen path, through clients pulling or not referring business, or through loss of young or old talent, remains to be seen. But even if it bet correctly for now, one thing is for sure. As Benjamin Franklin remarked, in the face of impending tyranny, “we must all hang together, or, most assuredly, we will hang separately.”

–Andrew

P.S. To read the article on Just Security, click here.