The recent federal district court ruling striking down the Trump administration’s executive order targeting the law firm Susman Godfrey is the fourth similar ruling in response to orders punishing firms that took on clients and causes adverse to Trump’s interests. Now, each of the four firms that chose to file challenges in court has prevailed, obtaining the court’s full rejection of the punitive order that sought to strip the firm of access to federal resources and facilities and terminate its federal contracts.
As one of several hundred law professors who signed amicus briefs on behalf of the targeted firms in all four cases, I am pleased to see a glimmer of light in an otherwise very ugly chapter in American legal and political history. The ugly chapter unfortunately continues with the Trump administration’s filing to appeal one of the rulings, and it remains possible—even likely—that it will appeal the remainder. Still, achieving court-ordered rejection of the entirety of four out of four challenged executive orders—each driven by nothing but a vendetta—is a victory for the legal profession and for American democracy.
Let us not forget that nine other firms also targeted by Trump in similar executive orders chose not to litigate and instead struck so called deals—in exchange for Trump’s withdrawal of the order, the firm would agree to perform some number of hours of pro bono representation on behalf of interests and clients of Trump’s choosing. The different reactions to what were (and are now declared by four federal courts to be) plainly unconstitutional actions by a president are now in stark relief. They reveal two contrasting existential conceptions of lawyers and their role in American society.
Lawyers and the law firms for which many work have two contrasting identities, each in tension with the other. They are undoubtedly in business and must pay attention to economic imperatives like any business must, but they are also in a profession, subject to ethical strictures imposed by state licensing authorities and a somewhat amorphous sense of professional responsibility to serve the public (the ethos of “doing the right thing”) that is more self imposed. Put another way, as a business, law is a private good; as a profession, it is a public good.
Appearances suggest that the firms that struck deals with the Trump administration took actions that embody law as a business, while the firms that sued to block the orders took actions that embody law as a profession. Consequences will ensue for both, but I expect that those that resisted will fare better in the long run.
The conception of lawyers as professionals, of law as a public good, is well captured by the words of Justice Sandra Day O’Connor in her dissent (joined by Chief Justice William Rehnquist and Justice Antonin Scalia) in the 1988 case of Shapero v. Kentucky Bar Association. In Shapero, the Court’s majority ruled that a state bar’s prohibition of direct mail advertising by lawyers violated the First Amendment. Justice O’Connor wrote as part of her dissent—
One distinguishing feature of any profession, unlike other occupations that may be equally respectable, is that membership entails an ethical obligation to temper one’s selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market. … Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth. That goal is public service…
The executive orders leveled against law firms that had somehow crossed Trump represent a blatant abuse of executive authority. They are a direct affront against the Constitution, the rule of law, and the fundamental principle that lawyers must be free to represent any and all clients, no matter how unpopular or disfavored by the politically powerful they may be. In 1770, John Adams famously embodied that principle when he represented the British soldiers who were charged with murder in what came to be known as the Boston Massacre. Lawyers today regularly embody that principle when they represent criminal defendants charged with heinous crimes or deeply unpopular or polarizing litigants who are filing suit or being sued.
Hence, challenging the executive orders in court was the right thing to do, the ethical and professional thing to do, a form of public service to preserve a fundamental principle of both the legal profession and democracy. Even if Trump himself might claim a “win” by having extracted concessions, or what he might think of as fealty, from the firms that capitulated, he cannot claim a legal win. Experts have noted that the executive orders are “a frontal assault on the rule of law” and “flagrantly unconstitutional.” But at least one firm had to step forward and bring a case so that a court could make it official. Thankfully, four firms did, and four different district judges reached the right result.
The firms that capitulated did so under the pressure of an executive order that was plainly unlawful, but one that was issued by the most powerful elected official in the country, thereby leading those firms to seek a negotiated resolution. That decision is plainly the product of a cost-benefit analysis—the firms decided that the benefits of freeing themselves from the punishing effects of the order without the need for litigation and getting on the “good side” of the administration outweighed the costs of taking on Trump’s preferred causes and enduring some bad public relations. This was fundamentally a business decision.
To be fair, the four firms that filed suit almost certainly undertook something of a cost-benefit analysis as well, factoring in business concerns, including the risk of losing clients. Law is, after all, not only a profession but also a business. Some have even suggested that the differing responses to the orders rested largely on the firms’ specialties—the ones more focused on mergers and acquisitions and other transactional work made deals because that’s their specialty, and the ones more focused on litigation filed suit because that’s their specialty.
Regardless, the firms that chose to fight took an action that ultimately upholds the integrity of the American legal system. One can hope and, I think, presume that the decision makers at each of these firms did so, at least in part, because of their professional responsibility as lawyers.
Ben Bratman is Professor of Legal Writing at the University of Pittsburgh School of Law. He regularly weaves themes of professional responsibility into his teaching and wrote about one such effort in Toward a Deeper Understanding of Professionalism: Learning to Write and Writing to Learn during the First Two Weeks of Law School, available here.
