How Will Law Students React to Law Firms Surrendering to Trump?

(And how should they react?)

In the wake of the capitulation of Skadden, Paul Weiss, and now Milbank, we’ve seen reports of associates writing open letters or firmwide emails criticizing the decisions of their firms’ leaders to obey in advance. A few have quit in protest. One Skadden associate took the long view, understanding that somewhere down the line, when all of this madness has ended, there will be a reckoning of who stood up for principles and who caved:

“Skadden is on the wrong side of history. I could no longer stay knowing that someday I would have to explain why I stayed.”

The firm’s response, not surprisingly, was to block internal email lists so that associates could not express their concerns about the firm’s deal with the administration.

It’s not only firm associates who are taking notice. Law students, at least at elite schools, are heading into recruiting season and choosing among a range of employers. Lawyers of a certain age may recall fall on-campus interviews (OCI) and job fairs, but the traditional recruiting cycle is now a thing of the past, and the reality today is one of direct engagement between students and law firms, as well as a greatly accelerated timetable, with students applying for 2L summer jobs in May after their 1L year. Since most summer associates receive a permanent offer, at least in the absence of bizarre behavior by the summer associate or economic misfortune for the firm, students who just finished their first year of law school are, in effect, interviewing for permanent jobs, or at least thinking about the firms they want to interview with, right about now.

Student Boycotts of Surrendering Firms?

Given that, how should law students think about interviewing for jobs at Skadden, Paul Weiss, or Milbank, the firms that have chosen to “settle” in response to the clearly unconstitutional executive orders threatening to put firms out of business who represent or have any association with Trump’s political rivals? One Georgetown student posted on Bluesky a letter to Skadden from a student organization, declining to participate in an upcoming recruiting event.

The decision to . . . provide $100 million in pro bono legal services to causes selected by the Administration is troubling and, in our view, represents a lack of moral courage and capitulation to political coercion that threatens the integrity and independence of the legal profession. . . . [T]he allocation of vast legal resources to causes dictated by partisan political pressure raises serious ethical questions about the firm’s judgment and independence.

Georgetown students also put together a scorecard tracking law firm reactions to pressure from the administration. Firms are listed as having “Caved to Administration,” “Complied in Advance” (often by taking down or rebranding DEI pages on their websites), “Other Negative Action” (an intriguing catch-all category), and “Stood Up Against Administration’s Attacks” (mostly just signing an open letter protesting the EO’s, but hey, it’s something).

I want to use the letter to Skadden and the firm scorecard to make a point about how law students might think about what firms have done right, and what they have done wrong, in response to the threats posed to their very existence by the Trump EO’s. Specifically, what to do with Trump’s claim that the sins of these firms are related to engaging in impermissible partisan political action? Here’s the worry: If that claim is plausible at all, it seems to undercut the criticism of the students who see Paul Weiss, Skadden, and Milbank as having betrayed fundamental professional ideals.

As is so often the case, there’s a crazy-making quality to Trumpian projection. Trump and his defenders are constantly accusing opponents of doing what he himself is openly, often gleefully, engaging in. For example, here is Trump’s statement in response to Paul Weiss’s surrender:

Paul Weiss has . . . agreed to a number of policy changes to promote equality, justice, and the principles that keep our Nation strong, including: adopting a policy of political neutrality with respect to client selection and attorney hiring; taking on a wide range of pro bono matters representing the full political spectrum . . ..

Based on this statement, you would think that the objection is to law firms taking sides in contested political debates. But then the statement goes on to applaud the firm for taking the administration’s side in contested political debates, specifically by

. . . committing to merit-based hiring, promotion, and retention, instead of “diversity, equity, and inclusion” policies; dedicating the equivalent of $40 million in pro bono legal services during my term in office to support causes including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives.

But then when it comes to a law firm like WilmerHale that has not bent the knee to Trump, representing clients pro bono in matters for political ends is a bad thing:

Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale) is yet another law firm that has abandoned the profession’s highest ideals and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States. For example, WilmerHale engages in obvious partisan representations to achieve political ends, supports efforts to discriminate on the basis of race, backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote.

So what is it? Is politically motivated pro bono representation, or selecting clients on the basis of their (political, ideological, etc.) objectives a good thing or a bad thing? If Wilmer should be punished for representing Harvard in the Students for Fair Admissions case, then is it out of bounds to criticize Sullivan and Cromwell for representing Trump on appeal of his New York State criminal conviction? Look, I know this is all typical Trumpian bluster, Frankfurtian bullshit, kayfabe, or propaganda. But I’ve found that, at least for me, it can be helpful to try to work through some of these assertions – even though they’re made in complete bad faith – to try to find what’s real among all of the shit they’re flooding the zone with.

Neutrality, Independence, Non-Identification

One important takeaway from the battle over Trump’s EO’s (at least for the firms who have chosen to fight) is that the important foundational professional value is not neutrality, as is often asserted, but independence.

In an editorial in response to Trump’s EO against Perkins Coie, the reliably conservative Editorial Board of the Wall Street Journal stated what I see as the conventional wisdom, that lawyers should be politically neutral in selecting clients, with the goal being to ensure that unpopular or controversial clients have access to counsel:

Mr. Trump’s order is now targeting the law firm for representing clients Mr. Trump dislikes. He is trying to defenestrate Perkins Coie to intimidate elite law firms from representing his opponents or plaintiffs who challenge his policies. This violates a bedrock principle of American law, which is that even the worst clients deserve representation. . . .

[I]t has typically been conservatives who have had a hard time getting representation from elite firms that fear political retribution from the left. Paul Clement, the premier Supreme Court litigator of our time, famously resigned from King and Spalding after that firm dropped the U.S. House of Representatives as a client in connection with the Defense of Marriage Act.

Paul Clement is now representing Wilmer in its challenge to Trump’s EO against it, and there’s something very interesting in his firm’s brief on behalf of Wilmer. The firm concedes that its decisions are explicitly not politically, ideologically, or otherwise evaluatively neutral:

In some cases, the Firm’s representations reflect a deliberate choice to avoid representing one side of a controversy, such as declining to represent tobacco companies in health-related matters, while in others they reflect a commitment to ensuring that both sides of a controversial issue are well represented. . . . In 2024, WilmerHale attorneys represented the Democratic National Committee in lawsuits adverse to the Republican National Committee, President Trump, and his allies in Arizona, Georgia, Michigan, New Hampshire, North Carolina, and Pennsylvania. And just this past month, WilmerHale lawyers filed a lawsuit challenging President Trump’s sudden dismissal of Inspectors General at eight of the federal government’s largest agencies, including Defense, State, and Health and Human Services.

(Wilmer Brief, pp. 6-7.) Does this undermine the criticism in the WSJ editorial of the decision by King and Spalding to withdraw from representing the House Republicans defending the constitutionality of DOMA? If King and Spalding acted badly (though not unethically in the sense of violating any of the rules of professional conduct) by dropping a controversial client, how can it be a good thing for Wilmer to decline to represent tobacco companies in health-related matters, or to represent the DNC in litigation adverse to Republican interests?

The way I see it, the relevant professional ideal is not neutrality. It is a cluster of values related to due process of law, but more deeply about liberalism, toleration, pluralism, and the constitutional non-orthodoxy principle: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). To the extent neutrality has anything to do with the analysis, it is in the sense used by some of the classic theoretical legal ethics articles:

“[O]nce he has accepted the client’s case, the lawyer must represent the client, or pursue the client’s objectives, regardless of the lawyer’s opinion of the client’s character and reputation, and the moral merits of the client’s objectives.” Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 NYU L. Rev. 63, 73 (1980).

“[F]or the lawyer to have a moral obligation to refuse to facilitate that which the lawyer believes to be immoral[] is to substitute lawyers’ beliefs for individual autonomy and diversity.” Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613, 617.

“Once a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to which the end will be put or the character of the client who seeks to utilize it.” Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1, 5-6 (1975).

The recurring language of “pursue the client’s objectives” indicates two things that I contend are fundamental to legal ethics: (1) the lawyer-client relationship is a fiduciary service relationship, in which the client sets the objectives of the representation and the lawyer uses reasonable skill and diligence to promote those objectives; and (2) there is a normative division of labor between the lawyer and the client – if the client wants to do something obnoxious, blame should properly be attributed to the client, not the lawyer.

I just returned from a symposium on my book at the University of Amsterdam, where a couple of European law professors persuaded me that, rather than talking in terms of professional neutrality, American lawyers should adopt the idea of non-identification of lawyers and their clients. Paragraph 18 of the UN Basic Principles on the Role of Lawyers states: “ Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.” This is a helpful way of reconceptualizing the issue. As the great legal ethics scholar Monroe Freedman consistently argued, lawyers have almost unlimited discretion to choose which clients to represent; it follows that they must be prepared to justify their decision to represent a given client or cause.

But here’s the thing: They often do have a good reason to represent even the most unpopular clients, or those accused of doing terrible things. Lawyers sometimes respond to my view that lawyers are morally accountable for the clients they represent by asking, “What about representing murderers, rapists, and other people accused of despicable acts?” I actually see those as easy cases. In a famous law review article, “Defending the Guilty,” Barbara Babcock lists many reasons that criminal defense lawyers find their work morally justified and personally satisfying, including (this is a long quote from the article, p. 178):

• The Political Activist's Reason. Most people who commit crimes are themselves the victims of horrible injustice. This statement is true generally because most of those accused of rape, robbery and murder are oppressed minorities. It is also often true in the immediate case because the accused has been battered and mistreated in the process of arrest and investigation. Moreover, the conditions of imprisonment may impose violence far worse than that inflicted on the victim. A lawyer performs good work when he helps to prevent the imprisonment of the poor, the outcast, and minorities in shameful conditions.

• The Social Worker's Reason. This reason is closely akin to the political activist's reason but the emphasis is different. Those accused of crime, as the most visible representatives of the disadvantaged underclass in America, will actually be helped by having a defender, notwithstanding the outcome of their cases. Being treated as a real person in our society (almost by definition, one who has a lawyer is a real person) and accorded the full panoply of rights and the measure of concern afforded by a lawyer can promote rehabilitation. . . .

• The Egotist's Reason. Defending criminal cases is more interesting than the routine and repetitive work done by most lawyers, even those engaged in what passes for litigation in civil practice. The heated facts of crime provide voyeuristic excitement. Actual court appearances, even jury trials, come earlier and more often in one's career than could be expected in any other area of law. And winning, ah winning has great significance because the cards are stacked for the prosecutor. To win as an underdog, and to win when the victory is clear-there is no appeal from a "Not Guilty" verdict-is sweet.

The reasons for representing clients in civil litigation or transactional work may not line up exactly with Babcock’s motivations for criminal defense lawyers, but they may also include the intellectual challenge of dealing with complex systems, valuing an orderly and reasonable fair system for adjudicating disputes, or a temperamental appreciation that modern life is messy and complicated and a system of laws is a good way of dealing with complexity and uncertainty.

Now, are these moral reasons? Maybe not, even if they help explain why some lawyers find their work satisfying. However, I do think there is a moral justification that underlies a wide range of client representations, and that is well described in Paul Clement’s brief on behalf of Wilmer: The constitution and our common law tradition establish protection against arbitrary power like that exercised in the EO’s. They also emphatically reject the idea that the President has the right to define “conduct detrimental to critical American interests” or “the interests of the United States.” Those are good reasons to work as a lawyer and to work for a law firm that acts according to those principles.

That goes for King and Spalding, too, by the way. I think that firm chickened out when it withdrew from the representation of the House Republicans. Politically and morally I thought DOMA was awful, but the position deserved a thorough airing in litigation and it would have been a worthwhile thing for a law firm to defend it. (I wrote about this episode briefly in my book, but since I was trying to analyze the debate, not inject myself into it, I didn’t say clearly that the firm caved to client pressure rather than standing up for professional values.)

I expect some will criticize the Georgetown students for creating the scorecard and trying to urge their classmates and other law students to consider options other than the Quisling firms. “You can’t criticize lawyers for the clients they represent” (i.e. doing $100 million worth of pro bono work for Trump-approved causes) would be an expected argument. Or, the critique may be that this is merely partisan, a product of Trump derangement syndrome, or whatever. Whether you see it as “neutral” or not, however, I commend the students for highlighting professional ideals that law firms ought to be committed to, and which some firms have betrayed.