A US district judge has permanently barred the implementation of an executive order issued by President Donald Trump against law firm Perkins Coie. 

The order was issued in March as one of several targeting ‘big law’ firms in the US. These orders suspended the security clearances held by the firms, eliminated any government contracts they held, and limited access to government buildings and resources. Those targeted have represented political adversaries of President Trump or causes he opposes.

The ruling in May by federal judge Beryl Howell of the District of Columbia found that the administration’s executive order against Perkins Coie violated the first, fifth and sixth amendments of the US Constitution. The Trump administration is expected to appeal. 

A number of firms targeted by Trump have pushed back and successfully obtained temporary restraining orders. One firm, however, is known to have negotiated a deal with the administration and the executive order against them has been rescinded.

Scott Cummings, a professor of legal ethics at the UCLA School of Law, describes the attacks on the law firms as part of ‘a broader autocratic legal playbook’ designed to suppress the country’s legal sector and the court system as an effective adversary. The administration has deliberately focused on the world’s most elite and powerful firms as the initial targets of this strategy, he says. ‘They are the only institutions within the US legal profession that have the resources to fight back on an equal playing field,’ he says. ‘The big focal point of these orders is to intimidate and constrain their ability to take on cases that provide access to justice to people and allow interests to be represented as a counterweight to government power.’

As of mid-April, more than 800 firms – most of them small and mid-sized – had signed amici briefs in support of those organisations that have contested the executive orders in court. For Cummings, the legal community’s mobilisation has galvanised attention on what is at stake.

The law firms that have signed deals have defended their decision-making as driven by strategic considerations. But Lauren Stiller Rikleen, the Boston-based Executive Director of Lawyers Defending American Democracy, isn’t so sure that their decisions make business sense. ‘They don’t know what will next upset the President […] what client will cause a problem or make him angry. So, how are they supposed to truly do client intake?’ she asks.

Targeting the elite, deep-pocketed firms that service corporate America also accomplishes another goal – it scares everyone else, says Stiller Rikleen. ‘How is the rest of the profession supposed to feel when they watch the most powerful […] not fight?’ she asks. 

The crackdown is expected to have long-term consequences that’ll ripple out beyond the firms currently in the hot seat. ‘Those firms who challenge the government’s policies in court will be concerned that they’re going to be publicly attacked themselves by figures in the Trump administration,’ says Leslie Levin, a professor of law at the University of Connecticut. 

Steven Richman, Chair of the IBA Bar Issues Commission, describes the independence of lawyers as a fundamental principle found in various ethics codes and international instruments. ‘If there are particular contentions to be raised as to specific behaviour of specific lawyers, there are procedures to address them,’ he says. ‘Executive orders that in sum or substance are more in the nature of targeted revenge raise serious issues that challenge faith in the rule of law. That said, I do not second guess any firm that chose a business resolution over a legal fight.’

Since President Trump’s return to office, non-governmental organisations, pro-immigration groups and trade unions have filed dozens of lawsuits challenging his executive orders over their alleged unconstitutionality. These efforts to hold the administration accountable are likely to take a hit given the pledge by a number of firms to do pro bono legal work to support causes of the President’s choice as part of their agreements with the administration. 

The dealmaking ‘redirects a massive amount of free legal services away from clients and causes that are in need and that are pro-democracy, and redeploys them in a direction that is fundamentally anti-democratic,’ says Cummings. ‘It also probably creates conflicts of interest within these firms that then disable them from representing anybody who has adverse interest to Trump – which is by design.’ 

Statements issued by firms who made deals with the Trump administration argue that they retain independence to pick their clients and cases. 

The causes that will have a harder time finding pro bono counsel will be wide-ranging and defy easy political categorisation, says Levin. Large US law firms provided over five million hours of legal work pro bono in 2023.

Full judgments in the cases brought by the other firms challenging the administration’s orders are expected in the near future. Ultimately, the cases may reach the US Supreme Court.
 

Image credot: Courtney H/AdobeStock.com