Is Paul Weiss the Tipping Point for Big Law?
There are stirrings that Big Law is ready to defy Trump's attacks.
THE NUMBER “3” has always struck me as talismanic. That’s the number of wishes you get from the genie. It’s the holy trinity. And, of course, three strikes, you’re out.
So when Donald Trump fired off his latest retaliatory executive order against a third major law firm – this time, the powerhouse firm of Paul Weiss – it felt like an inflection point.
Like the two previous executive orders he issued against Covington & Burling and Perkins Coie, Trump barely bothered to wear a legal fig leaf for his action, except to cite personal grievances. His two specific gripes against Paul Weiss are:
In 2021, “a Paul Weiss partner and former leading prosecutor in the office of Special Counsel Robert Mueller” sued Individuals allegedly involved in the January 6 riots.
In 2022, retired Paul Weiss partner Mark Pomerantz oversaw an investigation into Trump’s finances as a member of the Manhattan District Attorney’s office. (Trump said he joined the D.A. “solely to manufacture a prosecution against me”).
What’s curious is that Trump attacks Pomerantz by name but doesn’t bother to name “the former leading prosecutor” who brought the January 6 suit, though her identity is well-known. It’s Jeannie Rhee, a high-profile litigator who served as Deputy Assistant Attorney General during the Obama administration. (Query: Are Asians so invisible that they don’t even merit mention?)
There’s no question that Trump is inching toward authoritarianism with these executive orders (among other crazy measures, he banned all employees of Perkins and Paul Weiss, who number in the thousands, from entering federal buildings, including the courts).
But in this latest order targeting Paul Weiss, he went further: declaring war against Big Law writ large. He declares Big Law the enemy in the first sentence: “Global law firms have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles.”
What’s more, Trump takes aim at Big Law pro bono, which, he claims, is “potentially depriving those who cannot otherwise afford the benefit of top legal talent the access to justice deserved by all.”
NONE OF THIS MAKES SENSE, of course. How are “global” law firms (v. “American” law firms?) destroying the judicial process or American principles? And who is being deprived of “top legal talent” by Big Law pro bono? Neo-Nazis? The January 6 insurrectionist now running for the Senate?
The point is that Trump is gunning for Big Law and casting a wide net. In fact, the Equal Employment Opportunity Commission is joining that effort, announcing that 20 law firms are now being investigated for discrimination based on — what else? —their support of diversity, equity, and inclusion.
Trump’s attack on Big Law is both outrageous and absurd. If the threat to the integrity of the legal system weren’t so real, it’d make a farce worthy of Molière. It’s almost funny to imagine Paul Weiss partner and legal luminary Kannon Shanmugam, who’s argued almost 40 times before the Supreme Court, being physically barred from entering the hallowed halls of the high court.
So here’s my question: has the moment arrived when members of the exclusive Big Law club will band together to defy Trump? Is this the tipping point?
“I’m not sure this is the tipping point,” says a partner at a major firm. “My fear is that [the Paul Weiss order] might make people more scared. Trump has been brilliant in showing that he will not be deterred.”
I GOT CRITICIZED by several former and current partners in management roles for urging Big Law to present a united front against Trump. “Exactly what mind is that designed to change?” asked a former Big Law managing partner. “Donald Trump’s? Seems unlikely to work.” Others told me statements of protests would be “meaningless,” “naive” or “virtue signaling.” Another snipped, “you obviously have not managed a business or much of anything and be responsible for hundreds of people.”
True that. But even if it boils down to “virtue signaling,” isn’t there merit for standing up for what’s right? As we know, Big Law has not been shy in the past voicing support for social justice and other political issues, and now that it’s faced with an existential threat to its own independence, it’s saying nothing?
The cynical side of me wonders if some firms are quietly salivating the prospect of picking up clients and rainmakers from firms on Trump’s blacklist. Vultures in wait. That might strike you as ghoulish but we all know how ruthlessly competitive Big Law has become.
“Geez, that’s just too depressing to think about,” a partner at a top firm tells me. “But maybe that’s what the profession has become, where it’s all about profits and your position in the AmLaw 100.”
A former Big Law partner was a bit more sanguine – if that’s the word: “I surmise the silence reflects impotence and terror more than competitive advantage seeking. So many firms could be next if the witch hunt continues.”
NO KIDDING. I don’t think anyone believes Paul Weiss will be the last firm to be slapped with Trump’s executive order. Which brings me back to my original point: Haven’t we reached the now or never juncture?
Forgive me if I’m repeating myself, but I’m incredulous that the mightiest law firms in the land can be this feckless. Can they sit on the sidelines and watch a member of their brethren be destroyed?
In its complaint suing the DOJ, Seattle-based Perkins Coie states that it has already lost major clients as a result of Trump’s executive order. (Judge Beryl Howell issued a TRO that blocked parts of the order.) As a Washington D.C.-based firm with a significant regulatory practice, Covington’s economic loss could be even worse.
And Paul Weiss? “The EO could be life threatening,” a person familiar with the firm tells me. “Not being able to do business with companies that have contracts with the government is terrifying.”
It’s also terrifying that what Paul Weiss has built might be destroyed by a stroke of Trump’s pen. A storied litigation firm known for its early support of women and minorities (it elevated a woman to partnership in 1946 and hired a Black associate in 1949), it has emerged as a major player in the corporate sector in recent years by hiring star transactional lawyers. It’s also immensely profitable with $7.5 million in profits per equity partner. All this took years of strategic planning and hard work. But then came the wrath of Trump.
I can’t help but think of that old Yiddish saying: “Man makes plans, and God laughs.” Except this time God takes the shape of the Orange Monster.
I’m now hearing from multiple sources that Big Law is on the verge of some sort of action, that the EEOC’s targeting of those 20 firms is a catalyst. “Firm leaders haven’t seen the threat to the rule of law and our democracy as being as pressing, although that seems to be entering into their thinking more and more each day,” one industry insider tells me. “I would say the situation is fluid and we may be approaching a tipping point.”
“Approaching a tipping point?” Seriously?
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Vivia- to your critics, let's not forget that many of the 20 firms now being investigated by the EEOC futiley obeyed in advance by making cosmetic changes to their websites, deleting all references to diversity. History teaches us that obeyance in advance only invites more oppressive behavior by autocratic oppressors. It teaches the oppressor. That's exactly what has happened to these firms. History also teaches us that collective action is an effective tool for stopping autocratic. Read Tim Snyder, On Tyranny, Twenty Lessons from the Twentieth Century and Gene Sharp's From Dictatorship to Democracy, A Conceptual Framework. We may not want to believe what's happening to us, but sometimes you have to make yourself believe what your eyes see. Your call for collective action is spot on, Vivia.
I think Big Law will go the way of some of their clients and cave thinking this will protect them. It will not.