Sparring with Ethics Guru Stephen Gillers
His defense of Paul Weiss's deal with Trump was bonkers — and I told him so.
YOU’D BE SHOCKED at how deferential I am to my former professors (hey, I was raised to respect my teachers). But I just couldn’t let ethics guru Stephen Gillers, my former evidence professor at New York University School of Law, get away with it.
I thought what he wrote (“Paul Weiss Cut a Deal with Trump – That Doesn’t Mean It Caved”) for Bloomberg Law was bonkers. And I told him so (nicely, of course). Thus began a series of lively exchanges between us on Big Law in the age of Trump.
In his op-ed, Gillers calls the criticism levied against Paul Weiss for making its Trumpian bargain “misguided.” The firm neither “capitulated” nor “caved” to the administration, he writes. “What exactly did the firm promise?” he asks, citing its pledge to uphold justice, fight antisemitism, do “a wide range of pro bono,” and other anodyne agreements.
Those braying critics failed to analyze the actual terms, Gillers contends. If they had done so, they’d realize it’s all a big nothing. And, considering that the firm ensured its survival by making the deal, the benefits clearly outweighed the costs.
Coming from one of the nation’s top legal ethicists, it was a bit jarring. Sure, Paul Weiss’s promises to the administration might be facially unobjectionable, but isn’t that missing the bigger picture?
Gillers’s problem is that he views the deal through a lawyer’s lens. He’s fixated on the quality of the draftsmanship – as if that’s what’s at stake. The White House and Paul Weiss released separate, sometimes differing, versions of the agreement, he writes, noting that both were “vague and poorly drafted.”
He also rails against the imprecise terms used in the agreement, such as Paul Weiss’s promise to take on “pro bono matters that represent the full spectrum of political viewpoints.” He queries: “What does it mean to say that a legal ‘matter’ – not a person, mind you – represents a ‘political viewpoint?’” All this, he concludes, is “further proof of inept drafting and the insignificance of the restriction.”
At this point, I was rolling my eyes.
So I sent my former professor an email, telling him my objections:
Isn't it myopic to look at the agreement as just another badly drafted contract that left the firm a lot of wiggle room? The symbolism of getting Paul Weiss to agree to Trump's terms is huge – the propaganda value is immense, sending a message to other firms that it's futile to resist. And do you really believe the firm won't feel constrained about the kind of pro bono it takes on just because nothing is explicitly listed as verboten?
I concluded: “I think you're falling into the trap that many Democrats do – looking at dealings with Trump legalistically, as if that still has meaning. We’re in a different world now.”
Always the law professor, Gillers shot a question back at me: “Assume that [Paul Weiss chair Brad] Karp had good reason to fear that the order’s sanctions could bring down the firm as it exists, what would your response be? Or do you think the improbability of that is so great that we should reject Karp’s prediction as unworthy of consideration even if honestly made?”
I replied that the term, “bring down the firm,” needs defining: does it mean that Paul Weiss might lose its position as one of the most profitable firms in the country (it had the fifth highest profit per partner last year)? Or that it will cease to exist?
Then Gillers went full law professor on me with a long hypothetical:
Let's treat it as a mind game. Assume that if the firm continued to fight, there is an X percent chance that in six months, it would lose its corporate practice and would shrink from 1000 lawyers and a non-lawyer staff of 1500 to 200 lawyers and a staff of 300. Everyone else would lose their jobs. Assume to that its practice would then become mainly litigation. Assume all this is true and the only question is what X is.
Assume now that X is the product of state of the art computer analysis, individual statistical analysis by those most knowledgeable about the law market, and the best available artificial intelligence.
The rule for mind games is that you cannot fight the hypothetical. There is a number for X.
So the question for you is: is there any number for X at the time that the firm had to decide how to respond that would cause you to support the firm's decision to settle as it did? Or at least cause you not to criticize it? Or, conversely, would you criticize the firm (or support those who do) even if X were 100 -- that is, certainty?
I hate, hate hypotheticals! Suddenly, I’m reliving my 1-L nightmare – the time I got called on in criminal law and froze.
Decades later, I’m not quite as easily intimidated: “There’s no number for X that would change my mind,” I replied to Gillers. “The moral imperative trumps the economic considerations,” which is particularly true for Paul Weiss, I added, given its standing in the profession.
That’s how we left it: To me, a firm like Paul Weiss has greater societal obligations, while Gillers takes a much more circumscribed view.
But a week or so later, the list of major law firms capitulating to Trump started to grow. (As of this writing, Skadden Arps, Willkie Farr, and Milbank Tweed have each pledged $100 million to Trump’s pro bono slush fund, and Kirkland & Ellis is reportedly in talks with the administration.)
So I went back to Gillers for a temperature check. Does he believe that those $100 million pledges are all justifiable in the name of “saving” the firm? Or should we be alarmed about how compromised the profession has become in the Trump era?
Gillers is waking up and smelling the coffee (or the rot)! Though he had discounted the significance of Paul Weiss’s agreement with Trump because of poor drafting, he’s now taking an opposite view. “Troubling to me at the moment is how vague many of the firm promises are,” Gillers emailed me. “While that may seem a benefit to the firms … it also allows Trump to come back later and say that you haven't lived up to your bargain so I am reinstating the executive order.”
Gillers raised other new concerns. “Also troubling to me is the very idea that Trump can get these promises from law firms by using the executive order threat,” he continued. “This is troubling even if a promise describes conduct that the law firm is already doing; I fear a precedent that recognizes the power of the president or government to exact promises, even those the firm supports, let alone those it does not.”
Bingo! Isn’t that the kind of alarms many of us have been raising?
So has Gillers evolved in his thinking?
“I am not prepared to join the condemnation chorus against firms that, knowing their particular situation better than I do, decided for now to reach an agreement,” he responded. But he added, “this is a moving target, and I suspect that my views may move along with it.”
It might take a while, but I’m going to win this one, Professor Gillers.
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You are definitely going to win this one.
Funny—his initial argument was rules based, insinuating that if it ultimately came down to your personal assessment of the cost/benefits, who are we to substitute our judgment for Karp’s.
Only to then promptly realize that the costs seem to outweigh the benefits in his mind, and that he’s views would ultimately swivel on the outcome.