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Few topics in legal writing are as controversial as footnotes. Some lawyers — and many judges — hate them. Others find them a convenient place to tuck away additional information without cluttering the main text.
Every so often, however, a judge will use a footnote to speak directly to the broader public. It’s the judicial equivalent of an actor breaking the fourth wall — the imaginary barrier that separates performers from the audience.
That’s exactly what Federal District Court Judge Beryl Howell did in her Friday night decision permanently blocking Donald Trump’s executive order against Perkins Coie. Trump, you may recall, targeted my former firm largely because, during my time there, I represented his two political opponents.
In 2016, I served as general counsel to Hillary Clinton. In 2020, I represented Joe Biden and the Democratic Party in the post-election litigation brought by Trump and his allies. We won more than 60 cases. Trump was mad — bigly.
Even after I left Perkins Coie in 2021 to start my own firm, Trump continued to bear a grudge. While it was shocking that he targeted the firm, it wasn’t surprising. Vengeance has become a defining policy of this Trump era.
Perkins Coie fought back immediately and sued. Represented by litigation powerhouse Williams & Connolly, the firm secured emergency relief within days.
What happened next was both shocking and disappointing.
The next firm Trump targeted — Paul, Weiss, Rifkind, Wharton & Garrison — chose to settle rather than fight.
Paul, Weiss has a long history of aggressive litigation and pro-democracy stances. Yet, when the time came, it chose to capitulate to Trump’s demands rather than stand tall. Part of the price it paid was a reported $40 million commitment to Trump-approved pro bono work.
Paul, Weiss’s capitulation encouraged Trump to target even more firms. Some, like Perkins Coie, fought back and won. Others disgraced themselves by collaborating with Trump’s authoritarian tactics. By the time Judge Howell ruled late on Friday, nine firms — including Paul, Weiss — had pledged nearly $1 billion to Trump’s pro bono war chest.
Which brings us to Judge Howell’s footnote. |
It wasn’t enough for her that the government lost the case or that Perkins Coie was vindicated. She had a message for the clients of the firms that capitulated:
“Some clients may harbor reservations about the implications of such deals for the vigorous and zealous representation to which they are entitled from ethically responsible counsel, since at least the publicized deal terms appear only to forestall, rather than eliminate, the threat of being targeted in an Executive Order.”
Translation: If a law firm won’t defend itself against Trump and instead cuts a deal, clients should wonder whether that firm will meet its ethical obligation to zealously represent them — especially if Trump doesn’t like the client or the outcome.
Ouch.
But the judge wasn’t done. She made it clear that the firms that fought back — and the lawyers who represented them — would be remembered as the heroes of this trying era:
“If the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.”
Most of the commentary around how law firms responded to Trump’s executive orders has assumed that, while fighting back might be the moral stance, capitulating was the smarter business decision.
But what if Judge Howell is right?
Might clients worry about hiring law firms that, as she suggests, are ethically compromised? Only time will tell, but there have already been some reports of clients withdrawing work from firms that made deals and assigning it to firms that are fighting.
We don’t know how widespread this is or might become. We also don’t know if this is a product of the clients taking their own moral stance or whether it is motivated by the type of practical ethical concerns Judge Howell laid out.
Equally important, we do not know how many other judges share Judge Howell’s view of the situation. I suspect it’s more than Paul, Weiss and the other collaborators would care to admit. If that’s the case, the business risk for law firms targeted by Trump is more complicated and may swing decisions against him.
Clients hire law firms for a myriad of reasons. But, almost without exception, they want their lawyers to aggressively represent the clients’ interests and to give them the best chance of winning. It may turn out that for many clients that means not hiring lawyers to go into courtrooms before judges who don’t look kindly on those who cut deals with authoritarians. |
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