Edited by: Alanah Vargas | JURIST Staff, US
The second Trump administration has thrust the political role of major law firms into the spotlight. Beginning in February, President Trump announced executive orders targeting several firms through the termination of federal contracts, limitation of access to federal buildings, and suspension of security clearances. These orders were issued as a response to various firms’ prior involvement in prosecution efforts against President Trump, and their diversity, equity, and inclusion (DEI) policies.
One law firm called Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss) agreed to axe its DEI policies and provide the administration with $40 million worth of legal work in return for the rescission of the executive order against it. For Rachel Cohen, this marked a turning point.
Rachel Cohen is a Harvard Law graduate and former associate at Skadden, Arps, Slate, Meagher & Flom LLP, who made headlines for her decision to resign following the Paul Weiss deal. In her public resignation letter, she stated, “I am forced to hope that our lack of response to the Trump administration’s attacks on our peers, both those at other large firms and the many people in this country with far fewer resources, is rooted in feelings of fear and powerlessness, as opposed to tacit agreement or desire to maximize profit.” She has since engaged in extensive advocacy to uphold the US rule of law and protest what she sees as Big Law’s capitulation to the Trump administration’s demands.
In this interview, Rachel reflects on her decision to resign from Skadden, whether the legal industry shows any sign of change, the secretive nature of internal advocacy at big law firms, and how individuals (especially lawyers and law students) can define their moral positions.
What was it like making the decision to resign from Skadden and what have you taken from that experience, both personally and professionally?
The decision itself was cumulative, and also kind of two parts. In that moment, the decision to resign was made very quickly over the course of an hour or two. I didn’t really talk about it with anyone beforehand. That was a couple of hours of feeling the implication of the Paul Weiss deal for the broader industry sinking in. But at that point, there had already been several weeks of external facing advocacy that I was doing while still employed at Skadden. That entire period, I was sitting with myself to make sure that I was comfortable with whatever consequences could come out of that external facing advocacy which violated our Media and Publications policy pretty directly. That puzzling thought of “is this worth it to me?” had happened before I launched anything. My metric was never “is this going to result in me being fired?” or “is this going to result in a step back for my career?” It was “is this going to make things worse?” The only reason that I wouldn’t have wanted to do it is if the advocacy felt half-baked and wouldn’t resonate, and would actually turn people off to the idea that I’m trying to make sure they’re understanding. Will I be able to honestly tell people in five, 10 or 50 years that I respect, that are younger than me and didn’t maybe live through this time—or didn’t live through the same degree of agency and positioning—how I behaved, or will I be too ashamed? That continues to be the guiding question. And so the decision to resign in itself was almost inevitable.
The public opinion was so strongly on the side of me and the people that were anonymously working with me that Skadden’s hands were tied. Once they called me and said “start following the policy” and I said no, what’s available to them after that? I knew, based on the reaction within the first couple of days of me speaking to the press, that an escalation like discipline or termination would play very poorly for them, and they knew that too. The resignation question[s] became “will this feel petulant?”; “will this feel silly or like an overreaction?”; and “have I exhausted all of my options internally?” Not because I think that that’s necessary from a respectability politics stance. At the time, and still, I was getting a lot of affirmation from people who are very institutionalist and who really do believe in going about things the “right way.” I knew that in order to retain their support and attention, it was important that that group of people be able to tell themselves that I had done everything that I could do internally. And by that point, I really felt that I had.
You talked about the public reaction, as well as the reaction inside the law firm. Could you talk a little bit more about the atmosphere within the firm, or maybe within firms generally concerning advocacy, which I know you mentioned Skadden wasn’t happy about. How do you think that that atmosphere could be affecting the willingness of attorneys to speak out and engage in political participation?
It’s perhaps a little bit of a misnomer to say that advocacy isn’t well received. People have this notion that if you push back on anything internally that’s going on, you’re going to be labeled as a troublemaker and an upstart. I can’t speak to the entirety of the industry because I only have experience at one firm, but I do have a lot of friends at a lot of firms, and my impression is that measured advocacy internally—that does not involve media or airing out firm political dynamics—is not poorly received. I actually think that, particularly when done sparingly and on issues that are truly important, it can be quite well received. I think the trick is to frame it through a lens of concern for the firm; concern that the firm is not keeping up with the times or isn’t reacting to something in the way that is appropriate or in the way that clients want, or is misreading a situation. There’s no inherent downside to doing that, but the problem is that much of the time, it’ll just hit a brick wall.
There’s a framework that I use a lot from a class I took in law school. You’re trying to figure out at what point you can get people to listen to you in order to make change. There’s a point on the axis where heat, or discontent within the system, is too low, and so you’re in this stasis where nobody’s going to do anything. Then there’s also a line where the heat gets too high and people are panicked, and so they lock down. Often in firms, all of the acceptable things that you can do to raise heat, to get someone out of stasis, you could do all of them and still never hit the point where you’re going to get into the period where you can make change. That’s probably one of the major reasons why people feel that advocacy within these spaces looks impossible, because when it’s done well and right and in a way that doesn’t have a major impact on your career, one way or the other, people are never going to see it. The whole point of effective internal big law advocacy is for it to remain internal. They’re very insular, almost secretive organizations.
The associates were unbelievably activated on this. Because associates were so activated, people were having to listen. The issue was just that it was abundantly clear that no matter what steps were taken or how advocacy was framed, we were hitting that wall. I am not going to take on my multibillion dollar employer unless I am willing to blow up my career over it. If you back down on something that you have genuinely presented as your bright line, that’s detrimental. You have to be confident that you’ll take on those consequences. As an aside, I had been in very similar situations within Skadden before about social media presence related to political speech. I think that’s one of the reasons why they didn’t try to call me into a bunch of meetings or whatever else, because they had done that before and it hadn’t worked, and they had backed down.
The reason that it feels like there’s never any advocacy happening at these firms is because any effective advocacy is internal. We’re still seeing a lot of reports of internal letters that are being signed and pushing and refusal to do certain things. That’s not something that can be widely reported on in detail, because the people that are doing those actions are trying to get them to work internally, and that requires they not be widely reported on and not on the record, and all of these things, whether or not that’s effective is its own at this particular moment, is its own question. It’s certainly not nothing.
It sounds like within law firms, there are advocacy strategies, but people have to be very careful about the way in which they use them. You’ve now stepped into a public facing role, and made a lot more people pay attention to what’s going on. Have you noticed any shifts or statements from law firms since your resignation which indicate a change in position, anything which you would find encouraging?
You’re not going to see a public statement. None of these firms will ever admit that they were wrong. People will continue to apply to them. And I think it’s important to point out that some of the firms who have seemingly committed most strongly to not bowing in the face of Trump pressure, firms staying out of the news or entering deals, are firms that can do that because they are aligned with the President. You’re never going to see Sullivan and Cromwell enter into a deal with the President because they don’t have to. Their global co-chair is golfing buddies with him, and so they stay out of the news, and people don’t see the same thing. Jones Day, which is one of the only firms that would represent Donald Trump in his first term, has retained their SEO fellowship program when firms like Skadden and Latham have dropped it. Akin Gump, I heard, pulled SEOs like yesterday after they had already completed training, and I haven’t seen coverage of that.
The considerations of the firms and what success looks like is something I’m really cautioning people on. I did a panel with some Yale students, and a question we got was when do you know if the advocacy or the refusal to recruit that you’re asking from people works? We probably don’t ever know. What success looks like to me is, does it feel like we’re able to have a relatively free and fair election in 2028? We’re not going to see any adjustments from firms anytime before that. If you looked at the responses that law firms sent to the Democratic members of Congress who sent them inquiries, they all very much doubled down. I still have many, many friends at Skadden, and I have heard that recruiting has been brutal this year, that a lot of people are refusing to do trips, that very few, comparatively, students are accepting offers that have been extended to them, whereas historically, our yield was extremely high. I would say at least 75% of people that I interviewed who got offers accepted them. None of that’s going to be public. They’re going to be able to fill their class. They pay you more than I made in a year as a teacher to go around to dinners all summer. I don’t even have any problem with students taking those offers unless they want to be in big law really long term. Firms lose money on summers and first year associates. So my stance on this is if people had always anticipated that that was going to be their path, and they want to collect their summer checks and collect a year or two and then do as little work as possible and get out like, what does that [change]? I certainly wouldn’t encourage it, but I don’t think it’s devastating.
The problem is so much bigger than this specific facet of the Trump administration. This extends before and after the Trump administration in terms of actual access to justice. There’s just no timeline where there’s going to be an immediate impact, especially because on the inside they don’t actually care that much about recruiting. The recruiting people do, but the people who hold positions of power, who have the decision makers, they don’t care about recruiting. They care about whether or not their giant corporate clients leave, and their giant corporate clients are not going to leave until they see what is actually going to play out in the United States. Because if they cared about doing the right thing for the sake of doing the right thing, our country would look very different. Our law on corporate personhood and corporations would look very different.
So there are things that have been encouraging, but I feel strongly that we can’t get hung up on defining success in a shorter term period. I think that if we see much smaller class sizes, or we see people not releasing their stat like, those are victories. But also, I don’t even know if that’s truly a battle within the war. There’s so much work to be done, and it is long-term, systemic work.
Say you’re an individual thinking, “I want a career in law. Maybe I need to go into Big Law to fund my studies.” Do you think that there is anything an individual could do, or is it just a matter of compromise—that the individual can only do the best they can within an imperfect system?
It’s certainly that you have to do the best you can within an imperfect system, and we need to get a lot better at holding that. Rayne Fisher-Quanne said that there no ethical consumption under capitalism, but that doesn’t mean that you can just do whatever you want. It means you have to figure out where your lines are within that imperfect system and then stick to them. And I think that there’s a lot of people [who do]; I fall into this myself. This is not meant to be a devastating indictment of everyone who’s not me, because that would be very hypocritical. There’s a lot of people on the internet or at law schools—especially at very prestigious target schools—that seem convinced that the right ethical line is exactly where they have drawn it. There’s a lot of people at Harvard that think that the most evil thing that you can do is go into Big Law for a couple of years. And of course, Big Law is bad and always has been. But those people chose to go to Harvard, which I think is, in and of itself, arguably unethical. The kind of doors that it opens for you for no reason are genuinely absurd and rooted in very deep systemic advantages that are in turn often rooted in unethical actions by the institution, and many of the people that decide they want to go there are the people who are maybe the loudest in their critique of Big Law. You should be loud in your critique of Big Law. It’s not a good system. But lots of individuals that choose not to go into Big Law chose to go into Harvard so that they would have a better shot at politics, or corporate nonprofits or whatever else. I also chose to go into Harvard to have better career options. I chose to go into Big Law. I’m not going to decide that someone is not a possible ally because they are in that space. Now, I do believe at this point it’s not helpful to have allies on the executive committees of capitulating firms, for example, because the moment where that allyship could have been useful has passed, and it’s very clear that it was not useful. And it’s also very clear, based on reactions to my own and other people’s resignations, that there is utility in publicly speaking about this, particularly when you have the inside perspective. So I don’t fault people, really, if they decide they don’t want me as an ally because I went into Big Law for a bit, because I also do have lines when it comes to what I think is reasonable for someone to do while still claiming to care about justice or democracy. What individuals need to do is determine where their lines are and then stick to them. Your line doesn’t have to be “I’m never going into Big Law,” but you should know where it is. And if you have the choice to avoid firms that have entered into direct deals, I think that that’s helpful because there’s collective action around that. Everybody’s lines are going to be in a different place, and if everyone sticks to the lines that they have set for themselves—a lot of things might not be fixed—but would be significantly better.
What individuals can do is determine those lines and then build their capacity for discomfort when their lines aren’t in perfect places due to the reality of the system. It is uncomfortable to think that you are a very ethical, moral, and progressive person, and then to go into Big Law and argue for things that you don’t support. What I saw many of my friends do was shut down and say, “oh, well, you know, systems. What can I do about it?” Your responsibility is to grapple with your individual role in that system, your locus of control, and make decisions based on reality, but without sacrificing your commitment to the things that you believe in. There’s lots of different ways to do that. We have some toolkits out. There are conversations that are important to be having, and just having the conversations at all in a way that feels like you are actually trying to have them, and to puzzle through things together, and to coalition-build, that will then allow you to figure out what the, tangible action in your community is and your positioning to aid in this.
