Conflicts for Quislings

The firms that have caved rather than challenge the egregiously unconstitutional executive orders issued by the Trump Administration have all agreed to provide tens of millions of dollars of pro bono assistance. Paul Weiss was first, agreeing to $40 million in legal services to further causes supported by the President, as mutually agreed upon by the firm and the Administration. That deal led to the resignation of the long-time head of the pro bono practice at Paul Weiss.

Next up was Skadden, which pledged $100 million in services, again in furtherance of mutually agreed-upon causes. It provoked an anguished letter from numerous Skadden alumni and alumnae, who accused the firm of betraying the legacy of its founder, Joe Flom:

As one of the country’s most powerful and most profitable law firms, Skadden’s influence over the legal profession cannot be understated. In light of Skadden’s position, it is outrageous and self-interested that rather than fulfilling the legal profession’s oath and standing in solidarity with fellow law firms that were fighting to uphold the Constitution, Skadden caved to bullying tactics instead.

If I actually have any non-lawyer readers, they may not know that the Skadden Fellowship, established by the firm, is one of the most prestigious pathways for recent law school graduates to enter a career in public interest lawyering. Numerous current and former Skadden fellows signed a letter to firm management protesting its decision to surrender rather than flight. The firm has removed references to the Fellowship and its pro bono projects from the firm’s website, which does not bode well for the future of this program.

Following Skadden, Milbank and Willkie Farr cut similar deals. Then on Friday, five law firms announced that they would collectively contribute $600 million in legal services to Trump-favored causes. The firms were Kirkland & Ellis, Latham & Watkins, Simpson Thacher & Bartlett, Cadwalader, and A&O Shearman. Marc Elias, the former Perkins Coie election lawyer who now has his own firm, posted this list on Bluesky:

Trump has recently suggested that he will use the firms’ pro bono services to help negotiate trade deals with countries subject to his tariffs. in a Truth Social post he described “build[ing] an unrivaled network of Lawyers, who will put a stop to Partisan Lawfare in American, and retore Liberty and Justice FOR ALL.” He announced at a Cabinet meeting:

"We have a lot of law firms that have paid me a lot of money in the form of legal fees. We're going to probably use those firms ... if we can - I think we can," Trump said during a meeting of his cabinet at the White House. "I think we're going to try to use these very prestigious firms to help us out with the trade."

Since the first law firm capitulations Trump has been gloating about how much money the firms have given him, which even he seems to find unbelievable “considering they’ve done nothing wrong.” Here is Trump, speaking to a group of coal miners (from Law.com):

“Have you noticed lots of law firms have been signing up with Trump? [It’s] 100 million dollars, another 100 million dollars for damages they’ve done,” he said. “But they give you a hundred million and announce, ‘But we have done nothing wrong’, and I agree they’ve done nothing wrong, but what the hell, they give me a lot of money, considering they've done nothing wrong."

“They’re great firms, but they just had a bad moment. We’re going to use some of those firms to work with you on your leasing,” he said, gesturing to the miners in the background. It’s not immediately clear what specific leasing Trump was referring to.

With the message discipline that has become typical of the Trump 2.0 administration, White House Press Secretary Karoline Leavitt contradicted Trump’s statement that the firms have done nothing wrong. She said:

“Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First agenda.”

Unlike the first time, when commentators and Trump allies often said we should take Trump “seriously, but not literally,” this time around he has proven that he often means exactly what he says. We should assume he intends to task all of these law firms with providing legal services in support of various aspects of his agenda – trade, immigration, energy (“drill baby, drill”), civil rights, election law, his take on free speech (e.g. removing books having anything to do with Black people from the Naval Academy library), all of it.

There are many reasons for law firms to avoid cutting these deals with Trump, including self-respect, honoring the oath attorneys take to support the law, associate recruiting and partner retention, and persuading clients that they have the backbone to fight (for litigators) and the competence to assess counterparty risk and draft enforceable agreements (for transactional lawyers). I want to add a concern from my own little corner of the legal world: Spare a thought for the conflicts partners at these firms. It’s always been a difficult, thankless job, but it now got about 100 times harder.

How the Deals with Trump Create Conflicts of Interest

To set the stage, consider a recent event that may seem unrelated to law firm conflicts but is actually the heart of the matter (h/t Serious Trouble).

A couple of weeks ago, Adam Schleifer, an Assistant United States Attorney in Los Angeles, was notified that he had been terminated at the instructions of Donald Trump. The L.A. Times reported that the termination came via a one-line email from a White House staff account. Needless to say, this is very much not the way terminations of federal prosecutors are normally handled. AUSA’s have civil service protection, and ordinarily any disciplinary action against them would go through chain of command in the Justice Department.

So what happened? Schleifer was in charge of the prosecution of fast food executive Andrew Wiederhorn on federal tax-evasion charges, arising out of allegations that he had used corporate funds as a piggy bank to fund his personal expenses, including private jet travel, fancy vacations, and a Rolls-Royce. The L.A. Times reports that his defense team had “aggressively pushed Justice Department officials to drop the case.” Reading between the lines, it is a plausible inference that Wiederhorn was a buddy of Trump, a donor to his campaign, or personally or financially close to a Trump supporter. Here’s the bottom line from the point of view of independence of the legal profession and the rule of law:

[A] former prosecutor who handled fraud cases in the U.S. attorney’s office and sought anonymity over concerns about facing professional backlash, said he believes Schleifer’s firing is “going to have an incredible chilling effect on any line federal prosecutor who is thinking about criminally investigating or prosecuting an executive of any company of any significance.”

“The message from Adam’s case is that if you’re going to indict some run-of-the-mill CEO of a company, you need to check if he’s a Trump supporter first,” the former prosecutor said. “It’s going to cause line prosecutors to be considerably more careful about pursuing anyone who has even tenuous connections to the president, which is not good for the DOJ.”

In a Substack post, a partner at Jenner & Block, which is one of the firms suing over the unconstitutional EOs, explained why becoming part of Trump’s “unrivaled network of Lawyers” can create conflicts of interest for the firms:

[I]f a law firm enters into this type of non-deal, I don’t understand how it can ever represent clients in any case that involves the government. Every time its lawyers file a brief, they will think: “On the one hand, I have to represent my client zealously, but on the other hand, I have to make sure not to undo the deal.”

The firm might pretend it is defending its clients zealously. It might file legal briefs making all manner of legal arguments. But what if a lawyer uncovered information that made the government look bad? There would be massive pressure on the lawyer to look the other way. Maybe the lawyer would try to offer some explanation to his client as to why it’s strategically best to set the issue aside. But there would always be a question mark in the client’s head: “is my lawyer saying this because he believes it, or is the lawyer saying this because he’s trying to preserve his law firm’s settlement with the government?”

I think this is exactly right. However, the example of Adam Schleifer shows that the concern does not arise only in litigation against the government. A firm may also have to be careful not to anger an ally of Trump or one of his associates like Elon Musk or a contributor to Trump’s campaign or someone with whom he is in a financial relationship (like a shady cryptocurrency promoter). Doing so could lead to professional consequences like being fired as an AUSA or, in the case of a law firm, being deemed out of compliance with the terms of an agreement with the administration.

But it’s even worse. Firms may have to worry not only about representing clients in litigation in ways that potentially make Trump or his supporters look bad. They also have to worry about transactional representation, like merger deals, in which government approval is a condition of the transaction closing. Here’s another example:

When Trump was campaigning for president, he filed a deeply stupid lawsuit against CBS News, alleging that an interview on 60 Minutes with Kamala Harris was edited in a way that turned an inarticulate response to a question about the war in Gaza into something that sounded more reasonable. The political angle is obvious – 60 Minutes producers were trying to help Harris – but the legal angle is a head-scratcher. Journalists have a First Amendment right to make judgments in the course of editing interviews. Trump’s contention was that somehow the editorial decisions violated the Texas Deceptive Trade Practices Act, which is aimed at protecting consumers against misleading advertising. Most media law experts would agree this is a bizarre and dangerous application of a state consumer protection law that clearly violates the First Amendment.

But CBS News has been in settlement discussions with Trump for months now. Why? Why not fight a clearly frivolous lawsuit? Well, because CBS News is owned by Paramount, whose controlling shareholder Shari Redstone very much wants to sell Paramount to a media company called Skydance. In order for that transaction to close, the Federal Communications Commission must approve. The Trump-appointed head of the FCC has been making noises about how the agency may not approve the merger without some satisfactory resolution of the litigation over the 60 Minutes segment. Given those circumstances, can CBS News really afford to fight the bogus lawsuit?

Imagine a big law firm that is working on a lot of transactional work for a number of clients across a wide range of regulated industries. Some of the matters may be M&A transactions, or they could be routine deals that require federal agency approvals, permits, licenses, or whatever. The CBS/Paramount/Skydance deal shows that this administration has no compunction at all about threatening to withhold agency approval if one of the parties does not fall into line with what Karoline Leavitt referred to as the “America first agenda.” Client A needs approval from the FTC, FCC, or some other agency so that a merger can go through. Client B is litigating against a different government agency or even just a company controlled by a guy who gets Trump’s ear at Mar-a-Lago. The word comes down that Client A’s approval won’t come through unless Client B drops the case. That’s a really nasty conflict of interest, and it is entirely foreseeable given this administration’s personalized, friends-or-enemies approach to thinking about government interests.

If you have any doubt that “America first agenda” is just another way of referring to the full MAGA project, look at the EO that was entered against Susman Godfrey (which the firm, to no one’s surprise, is fighting). The EO claims that the firm is acting in a way that is “detrimental to critical American interests” because “Susman spearheads efforts to weaponize the American legal system and degrade the quality of American elections.” What was that effort that weaponized the American legal system and degraded the quality of American elections? Maybe delivering a good old-fashioned ass-kicking to Fox News in a defamation action brought by Dominion Voting Systems? Fox, of course, had eagerly promoted the false narrative pushed by Trump of widespread fraud in the 2020 presidential election. Any deviation from that narrative must be severely punished as anti-American. Do you think any law firm that has cut a deal with Trump, with the proverbial sword of Damocles of these EOs, could possibly represent a client like Dominion in a matter that might arose Trump’s ire?

A Brief Brush-Up on Conflicts of Interest

This is a liability and risk-management concern for these firms, not merely a matter of client relations or a so-called “business conflict.” Every U.S. jurisdiction has a conflict of interest rule based on ABA Model Rule 1.7. Some states employ varying language, like New York’s “differing interests” standard, but the substantive standard is the same. Here’s Model Rule 1.7(a)(2):

A concurrent conflict of interest exists if . . . there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

The conflicts of one lawyer in the firm are imputed to all lawyers in the firm, under Rule 1.10(a), so if the firm is part of Trump’s network of lawyers, a lawyer doing administration-approved pro bono work has responsibilities to that client that may materially limit the representation of other firm clients, even if represented by a completely different team of lawyers, even in a different office of the firm.

The key to understanding material-limitation conflicts is the concept of independent professional judgment. A lawyer must always be free to advise a client on a course of action, or take measures in the course of representing the client, that are based solely on the lawyer’s reasonable assessment of what is in the client’s best interests. This is an implication of the highly fiduciary duty of loyalty that characterizes the lawyer-client relationship. Comment [8] to Rule 1.7 explains:

[A] conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. . . . The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

Something lawyers sometimes forget is that a conflict of interest exists, by definition, if there is a significant risk of this type of interference with independent professional judgment. I don’t know how many times I’ve cited this paper in expert reports in conflicts cases, but all lawyers should know the takeaway from Kevin C. McMunigal, “Rethinking Attorney Conflicts of Interest Doctrine,” 5 Geo. J. Legal Ethics 823 (1992): Conflicts rules are “risk rules,” not “harm rules.” There is a conflict, by definition, if there is a significant risk that the lawyer’s professional judgment will be materially limited by the lawyer’s responsibilities to another client or the lawyer’s personal interests. Despite a persistent folkloric belief in the difference between actual and potential conflicts, or potential and “direct” conflicts, that’s not a thing. If the risk of a material limitation of independent judgment is significant, then by definition there is an actual, not a potential conflict.

So, to all you conflicts partners at the firms who have entered into deals with the White House . . . are you ready for this? Have you looked at all of your firm’s litigated matters to see if any of the adverse parties are buddies with Trump? Or whether they represent interests that are more aligned with the “America first agenda” than your clients? Have you reviewed pending transactional matters to see if agency approval is required to serve the interests of Client A? If so, have you thought about whether something Client B has done may have pissed off Trump? Have you considered the concessions that will be demanded from Client B in order to keep the matter for Client A running smoothly?

Most conflicts are waivable, provided that all affected parties give informed consent, which is defined by Model Rule 1.0(e) as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” But that “adequate information and explanation” standard is very demanding in practice. In order to get Client A’s informed consent to the representation, in light of the risk that Trump may be pissed off by something you did in the course of representing Client B, you need to provide full disclosure. And that may require revealing information pertaining to Client B that you are duty-bound to keep confidential. (One of my favorite teaching cases on conflicts involves incompatible duties of communication and confidentiality.) While these firms so far are being tight-lipped about the terms of their agreements with the administration, it won’t be long before clients will start demanding to see them, and for good reason. If a firm cannot reveal information of one firm client to another, then the conflict becomes practically non-waivable, even if it might have been theoretically waivable. In that case, proceeding in the face of the un-waived conflict will be a breach of duty to all affected clients.

Then there’s the more general, less client-specific risk associated with the provision of the firm’s promised $40-125 million worth of legal services to the administration, in negotiating coal mining leases or whatever. In normal circumstances a firm would be able to say no to a client’s request to provide legal services in connection with a matter. A firm subject to one of these agreements, however, might reasonably believe it has no option to decline to provide some work in furtherance of the “America first agenda.” The firm may also not be permitted to exercise its usual independent judgment in deciding what other pro bono matters to take. It’s not at all farfetched to think that somewhere in White House counsel’s office there are some lawyers tasked with monitoring these firms work toward their commitment of providing free legal services to the administration. If lawyers have always hated oversight by liability insurers, wait until they experience the supervision of political commissars who will be looking for evidence of ideological non-conformity. I believe some of the lawyers in these firms think they will be able to continue to run their pro bono programs in the way they have always done so, but again taking Trump literally as well as seriously, I expect they’re going to find out that he really does think of them as “his” law firms, to be ordered around and punished severely for non-compliance.

Getting this wrong risks not only professional discipline but lawsuits from affected clients for negligence or breach of fiduciary duty. This is bread-and-butter work for those of us who do expert witness work in the professional responsibility area. Big-firm conflicts checking procedures are sophisticated, but it can be extremely difficult to pick up material limitation conflicts, given the many ways in which, per Comment [8], the ”lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests.” The assessment of material limitation is not just something that happens at the outset of the representation but must be reevaluated over the course of the representation as positions and interests potentially re-align. A job that has always been extremely difficult just became much more so.

The briefing in the Perkins, Wilmer, and Jenner EO cases has highlighted the threats to constitutional rights of free speech, freedom of association, and petitioning the government for redress of grievances. From the point of view of professional independence, principles of liberal (small-L!) democracy, and the rule of law, these orders are a profound threat. I understand that, from the point of view of any individual law firm, they’re in a Prisoner’s Dilemma situation. The observation here about conflicts is meant to show that it is rational from the individual as well as the collective point of view to fight these efforts at intimidation, not cave in the hopes of self-preservation. I hope I’m wrong about some of these risks, but it’s the job of law firm general counsel’s offices to take them seriously. Like I said, spare a thought for these lawyers.