The Law Firms’ Deals with Trump are Even Riskier Than They Seem

We’re living in a world where allusions to Shakespeare’s famous “first thing we do, let’s kill all the lawyers” line have become commonplace. They come in the context of the Trump administration’s many attacks against lawyers, courts, and—perhaps most unexpectedly—some prominent law firms. Faced with executive orders aimed at undermining their ability to represent clients who have business with the federal government, some firms have opted to litigate; one has already secured a resounding victory in district court. But most of the firms—call them the “settling firms”—have struck deals with the administration. 

The settling firms and their supporters have hastened to defend their decisions to settle as necessary in the face of an existential threat to their business. The nature of their work requires “productive interaction and engagement with the federal government,” the chair of one firm wrote, so they “immediately understood that the effects of the executive order would destroy the firm, even if we ultimately prevailed” in a lawsuit against the administration. They had to reach a deal, another wrote, because “we are dependent on our ability to navigate client issues in all parts of the Executive Branch.” There would have been “death spirals” of lawyer departures akin to bank runs if the firms didn’t settle, a law professor opined.

On the opposing side, many have lamented—or raged at—the firms’ decisions. A settling firm “didn't just bend a knee, it set a new standard for shameful capitulation,” Marc Elias wrote on Bluesky.” Making the deals was, in the words of several lawyers, tantamount to “sit[ting] back, check[ing] your bank balance and watch[ing] your freedoms, along with the legal system and the tripartite system of government we should not take for granted, swirl down the drain.” Even a federal judge, writing in her order finding one of the executive orders unlawful, admonished that “those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.”

The settling firms’ PR strategies suggest they are well aware that they'd face widespread opprobrium, as indeed they have. Undoubtedly that was part of their calculus: we’ll get a lot of flack for it, high-minded people will pontificate about morality and the rule of law, but at least we’ll still have our business. We can carry on as before.

And undoubtedly the settling firms also noticed that some firms—including Perkins Coie, Jenner & Block (disclosure: one of us, Orpett, worked there), WilmerHale, and Susman Godfrey—were fighting what courts thus far have uniformly found to be unconstitutional executive orders. So perhaps they further calculated that those challenges would eventually prevail, and that success in that litigation would inure to their benefit as well—so they may as well avoid the risk and expense, and stay on Trump’s good side while doing it. Hardly a profile in courage. But maybe they rationalized it as a shrewd business decision.

The thing is, the firms’ choice to make a deal involves more than deciding between standing on principle or taking a mercenary business outlook. In making the deals, the firms have taken on other kinds of risk as well. And not just the obvious risk that after caving to Trump this time, he could demand even more; indeed, he already has.

What follows is a survey of those other risks. Some, like criminal liability, may seem low-probability. Others, such as ethical violations, seem all but inevitable. It’s hard to assess likelihood when so much about the deals is unknown—are they even written down? Are they remotely enforceable?—and we don’t know precisely how they’ll play out. It’s also hard to assess because the situation is literally unprecedented. But one thing is clear: the firms have much more than a moral stain to worry about.

Background

The Trump administration on Feb. 25 issued an executive order that suspended security clearances for “all members, partners, and employees” of the law firm Covington & Burling “who assisted former Special Counsel Jack Smith during his time as Special Counsel,” terminated any government engagements of Covington, and directed a review of any government contracts that Covington held, apparently because an attorney from the firm had assisted Smith while he was the Special Counsel. (Disclosure: one of us, Pearce, worked for Smith.) That turned out to be an opening salvo in the administration’s targeting of law firms.

The next executive order, on March 6, focused on Perkins Coie while also signalling a broader campaign against law firms. Section 1 of that order asserted that the firm engaged in “dishonest and dangerous activity,” including in its representation of “failed Presidential candidate Hillary Clinton.” In addition to suspending security clearances and terminating government contracts associated with Perkins Coie or its clients, the order directed the Equal Employment Opportunity Commission (EEOC) to review “the practices of representative large, influential, or industry leading law firms” to determine if those firms were complying with the administration’s efforts to “end[ ] discrimination under ‘diversity, equity, and inclusion’ policies.” The order also directed agency heads to limit access to federal buildings for Perkins Coie employees. Perkins hired another law firm, Williams & Connolly, and challenged the order in federal court in the District of Columbia.

Next in the administration’s crosshairs was Paul Weiss. That order asserted that Paul Weiss was among a group of “[g]lobal law firms” that “played an outsized role in undermining the judicial process and in the destruction of bedrock American principles” by “engag[ing] in activities that make our communities less safe, increas[ing] burdens on local businesses, limit[ing] constitutional freedoms, and degrad[ing] the quality of American elections.” As supposed evidence of those claims, the order cited a Paul Weiss partner who brought a pro bono lawsuit against individuals involved in the Jan. 6 attack on Capitol and the claim that the firm in 2022 hired Mark Pomerantz, who had investigated Trump while working in the Manhattan District Attorney’s Office. Pomerantz no longer works at the firm.        

On March 17, three days after the Paul Weiss executive order, the EEOC sent letters to 20 law firms seeking information about those firms’ DEI employment practices. EEOC promised that it was “prepared to root out discrimination . . . in our nation’s elite law firms.” The letters themselves sought detailed information about the firms’ hiring practices, including for internships, scholarships, and fellowships.

After the EEOC letters, law firms that had been—and would be—targeted by the Trump administration fell into two camps. The first camp are those that chose to litigate the lawfulness of the executive orders. Like Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey all challenged their respective executive orders in the District of Columbia. Each firm has successfully persuaded district court judges to temporarily restrain the orders from taking effect.   

In the second camp are the law firms that settled. The first to cut a deal was Paul Weiss. Characterizing the executive order as an “existential crisis” that “brought the full weight of the government down on our firm, our people, and our clients,” firm chairman Brad Karp described the deal as consisting of three parts: (1) reiterating the firm’s “commitment to viewpoint diversity, including in recruiting and in the intake of new matters”; (2) “follow[ing] the law with respect to our employment practice” while retaining the firm’s “longstanding commitment to diversity in all of its forms”; and (3) committing $40 million over four years in pro bono work in “areas of shared interest” such as “assisting our Nation’s veterans, countering anti-Semitism, and promoting the fairness of the justice system.” 

At last count, eight other law firms had also settled with the administration: Skadden Arps, Wilkie Farr, Milbank, Kirkland & Ellis, Latham & Watkins, A&O Shearman, Cadwalader, and Simpson Thacher. Unlike Paul Weiss, these firms all settled preemptively—that is, before any executive order targeted them. But like the Paul Weiss deal, the firms appear to have promised pro bono work, collectively now nearly $1 billion “in free legal services to causes favored by the Trump administration, including ones with ‘conservative ideals.’” At the same time, it is not evident precisely what terms the administration and the law firms have agreed to. The New York Times has reported that “It is unclear whether the firms even signed formal written deals spelling out the terms, or if they were essentially handshake agreements.” (When pressed in a hearing in the Perkins Coie case, Richard Lawson, a deputy associate attorney general at the Justice Department, said he too did not know whether agreements had been written down.) That lack of clarity appears to have led to an “emerging gap between what the firms initially thought they agreed to and what Mr. Trump says they can be used for.”   

For his part, Trump has not been shy about expressing his view of the type of legal work he expects the law firms to undertake. He has suggested that the firms could assist the administration negotiate trade deals with other countries. Speaking to a group of coal miners, Trump announced that he intended to deploy the firms to work on “leasing and other things.” White House officials and Trump advisers have indicated that law firm lawyers might assist the Department of Government Efficiency (DOGE) or the Justice Department, and could “even be used toward representing Mr. Trump or his allies if they became ensnared in investigations.” And an executive order issued on Apr. 28, addressing how the administration intends to strengthen and “unleash” law enforcement officers, directs the attorney general to “provide legal resources and indemnification” to officers that “unjustly incur expenses and liability” in connection with their efforts to enforce the law, including “the use of private-sector pro bono assistance for such law enforcement officers.”

Disparate notions of what the agreements between the settling firms and the administration illustrate, as Judge Howell observed earlier this month, that “the precise terms of each deal are somewhat fuzzy.” Needless to say, fuzziness and uncertainty create risks for the settling firms.

The risks are far from hypothetical, and uncertainty is just the start of it. The firms have already taken on concrete risks just by making deals with Trump at all. They’ve also signed themselves up for risks that may present themselves down the road. Some have probably already presented themselves; some almost certainly will.   

The Immediate Risks

Based on what we know about the deals, certain risks exist from the very fact that the settling firms made them at all. That is, some risks exist right now. They include risks that the firms have violated criminal law and their ethical obligations.

Criminal Exposure Risks

Perhaps surprisingly, the settling law firms plausibly face criminal liability as a result of their deals. The most potent criminal risk relates to bribery. A legal dictionary defines bribery as the “corrupt payment, receipt, or solicitation of a private favor for official action.” At a very basic level—and we address specific nuances under different legal regimes below—the settling firms’ conduct can be viewed as offering pro bono legal services as a “payment” in exchange for official action, either rescinding an existing executive order (in the case of Paul Weiss) or foregoing issuance of an executive order (for the firms that settled preemptively).    

Criminal Exposure Under Federal Law

A potentially applicable federal bribery statute is 18 USC § 201. A person violates § 201 when he or she “directly or indirectly, corruptly gives, offers or promises anything of value to any public official” or “offers or promises any public official . . . to give anything of value to any other person or entity” intending to “influence any official act.” The core of bribery under § 201 is a quid pro quo, what the Supreme Court has described as “a specific intent to give or receive something of value in exchange for an official act.” The term “corruptly” in the federal bribery statute thus means offering the thing of value to the public official “with the specific intent” that the official “perform[] an official act in return.” An official act refers to “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official.” It is not enough for the public official to merely set up a meeting, talk to another official, or organize an event, but a public official’s decision on a “formal exercise of governmental power” with respect to “something specific and focused” would qualify.

The prosecution theory here would be that the law firms offered a thing of value (free legal services in support of certain pro-administration causes) to public officials (President Trump and potentially others) in exchange for Trump's agreeing to rescind or not to issue an executive order that penalizes personnel at the firms in certain ways (for instance, stripping security clearances, terminating government contracts). That is a classic quid pro quo understanding, even if no one ever “expressly incanted the precise words that they ‘would do X in exchange for Y.’” Indeed, the judge presiding over the dismissal of the criminal prosecution of Mayor Eric Adams—which appeared to involve dismissing the indictment in that case “in exchange for immigration policy concessions” from Adams—made an observation that seems equally apposite for the law firms: “Everything here smacks of a bargain.” 

The settling firms could also be said to have criminally furthered extortion. Although extortion typically evokes victimhood, the criminal statute that would form the basis of charges is more complicated. The Hobbs Act (18 U.S.C. § 1951) provides that extortion includes “the obtaining of property from another, with his consent” when done “under color of official right.” To be sure, the term “extortion” may “call to mind the predations of a corrupt public official who pressures hapless citizens into paying him tribute.” Indeed, Judge Howell, while presiding over the Perkins Coie case, described the situation as a “shakedown.” But the Supreme Court has recognized that extortion committed by a public official is “the rough equivalent of what we would now describe as ‘taking a bribe.’” Under the Hobbs Act, the prosecution’s argument would be that the Trump administration extorted the law firms by accepting pro bono legal services, knowing that the law firms promised such services in the hope that President Trump would be influenced not to issue an executive order targeting the firms. And the law firms either conspired with or aided and abetted that extortionate conduct.

If such a prosecution arose, the law firms might argue that if any extortion occurred, they should be considered victims, not perpetrators. It is generally true that a victim of an offense cannot be criminally liable as an accomplice. But under the circumstances, it is far from clear that the law firms would qualify as victims. A victim in an extortion scheme is one who supplies only “bare consent or acquiescence.” By contrast, one who plays an “active role in planning and carrying out” the scheme can be guilty as a conspirator or an aider and abettor. Victims don’t tend to make public announcements loudly defending the virtue of paying tribute to the extortioner. Far from passive stooges who merely paid when told to do so, the settling firms appear to have pro-actively negotiated the agreements under which they promised free legal services in exchange for the withholding of an executive order. And the notion that these powerful, global law firms were mere victims unable to say no is belied by the fact that several of their peer firms—including firms that were in fact less powerful by some conventional metrics—faced the same situation, but chose to fight the executive orders through the judicial system.

Conviction for bribery (in violation of § 201) or extortion (in violation of § 1951) also, at least theoretically, opens the door for additional exposure under other criminal statutes. Again, it may seem unlikely as a practical matter that a prosecutor would bring these charges, but the legal arguments are far from frivolous. And, as we discuss below, it forms the basis of potential civil claims. Both offenses constitute “specified unlawful activity” that can form the basis of a money laundering prosecution if the firms knowingly used proceeds from those offenses in certain transactions. Both offenses also constitute “racketeering activity” for purposes of the Racketeer Influenced and Corrupt Organizations (RICO) Act.     

It wouldn’t be inherently unreasonable if the firms calculated that they could tolerate the risk of criminal prosecution if they believe that likelihood is low even if harm is severe. But there are at least two reasons for pause. First, the default federal criminal statute of limitations lasts five years, which will outlast the current administration. And every so-called “overt act,” including any instance of providing pro bono services, would restart that five-year clock. Second, the current administration could in theory use the “threat of criminal prosecution” as a sword of Damocles to “compel law firms to continue complying with the President’s demands.” It’s more than a little counterintuitive that the very administration benefiting from the deals would threaten criminal prosecution, particularly where the crime—bribery—redounds to its own advantage. But it wouldn’t be the first time this administration tried to use the threat of prosecution as a cudgel to enforce its policy goals  (as in the case of Mayor Eric Adams) or perhaps as a form of punishment for perceived misdeeds (as in the case of New York Attorney General Letitia James).

(A letter from certain Democratic house members argues that the law firms’ conduct could also amount to bribery under various state laws. Given space constraints, we don’t analyze this potential risk here.)  

Criminal Exposure Under Foreign Law

The settling firms could also face criminal liability outside the United States, at least on paper. There are a lot of possibilities given their global presence and reach, but a common one—thanks to the fact that every settling firm has a London office—is under UK law.

In particular, the UK Bribery Act of 2010 may come into play. Like the U.S. anti-corruption law the Foreign Corrupt Practices Act, Section 6 of the UK Bribery Act prohibits directly or indirectly offering or providing things of value—including the provision of services, not just funds—to a foreign official with the intention of (1) influencing that official’s performance of his/her duties, and (2) obtaining or retaining business or “an advantage in the conduct of business.”

Even what little we do know about the law firms’ deals seems enough to make out a prima facie case of bribery under this statute. They have promised (offered) to provide free legal services (a thing of no small value) to avoid Trump’s threats to cancel their client’s federal contracts and bar their employees from federal buildings (to influence Trump, a foreign official, and retain their business). And there’s a case for bribery even without the pro bono work or any of the other things the firms have promised to do in the future—because the deals themselves look like a quid pro quo. For Paul Weiss, the deal had the express effect of influencing Trump to rescind his original executive order against them. For the other firms that settled preemptively, it seems to have had the effect of convincing him that he didn’t need to bother issuing executive orders targeting them.

The UK Bribery Act has broad extraterritorial application. But making the jurisdictional case that the firms’ deals violate the Act doesn’t even require much legal maneuvering. The law merely requires that “any act or omission which forms part of the offense” take place in the United Kingdom—where all of the firms have offices (specifically, in London).

That means that participation of the firms’ London offices could provide the necessary hook to establish jurisdiction for a Section 6 charge. Did a Zoom meeting to discuss the settlement include a partner sitting in the London office? If a prosecutor can show that any aspect of the settlement meets the definition of bribery—which, as described above, seems entirely plausible—the firm has already violated the UK Bribery Act, even if it does nothing further, even if it somehow manages to avoid keeping any of the promises it made to Trump under its deal.

UK prosecutors probably wouldn’t even have to identify a specific act that took place in London, because the law applies even if conduct that would constitute a violation if it occurred inside the UK actually happens elsewhere, but the person committing it “has a close connection with the United Kingdom.” That “close connection” definitionally includes British citizens, nationals, or persons “ordinarily resident” in the UK.

Of course, a jurisdictional hook doesn’t necessarily put the firms themselves at risk (though its employees may well be). Corporate criminal liability has traditionally been narrower under UK law than it is under U.S. law. But the firms still have a lot to worry about, even if it would appear they’re not all that concerned about individuals on their staff who might find themselves personally liable.

In 2023, a new law in the UK specifically blessed a theory of liability whereby a senior manager’s conduct can be imputed to the organization. That means that the firms are at risk if any sufficiently senior member of the firm takes action constituting bribery under the Act, no matter where the conduct occurs, so long as that person is British or even “ordinarily resident” in the UK. Likewise, if a senior manager from the U.S. visits the firm’s London office and takes any such act while there, the firm itself may be liable for violating Section 6.

There’s also Section 7 of the UK Bribery Act, which poses an even higher risk to the settling firms. It specifically provides that a commercial organization’s failure to prevent bribery constitutes a violation of the UK Bribery Act. Under this section, a commercial entity—which includes foreign corporations or partnerships that “carr[y] on a business, or part of a business, in any part of the United Kingdom,” a definition the firms undoubtedly meet—can be penalized for failing to prevent an “associated person” from committing bribery under Section 6. The definition of “associated person” can include employees or agents. That means that the firms may be culpable under the Act even if none of the bribery-related conduct takes place in the UK and no citizens, nationals, or persons “ordinarily resident in the UK” have committed it, so long as the conduct constituting the “failure to prevent” has a nexus to the UK.

Worse still, once there’s a violation of the UK Bribery Act, there’s a risk of exposure under the UK Proceeds of Crime Act. The money-laundering section of that law criminalizes the “acquisition, use, or possession” of “criminal property,” the latter of which is defined as property derived from criminal conduct. If the firms’ deals or their performance under them constitute criminal conduct, the money the firm makes as a consequence—and with which it pays its employees—could plausibly constitute criminal property. (The law can apply even if “criminal property” is commingled with legitimately-obtained funds; it can also apply where the perpetrator of the predicate crime is also the launderer.) To take one possible example: The first executive order targeting Paul Weiss specified that federal agencies must “take appropriate steps to terminate any contract for which Paul Weiss has been hired.” The second executive order, issued after the firm reached a deal with President Trump, revoked the first, noting that Paul Weiss had “indicated that it will engage in a remarkable change of course,” had “acknowledged . . . wrongdoing,” and would be “dedicating the equivalent of $40 million in pro bono legal services.” In other words, as a consequence of its deal, Paul Weiss convinced the president to reinstate some unknown value in government contracts that the first order had slated for cancellation. Could those funds be “criminal property” under the Proceeds of Crime Act?

All in all, there seem to be plenty of ways in which the firms could be reasonably investigated for violating criminal laws. Whether or not authorities actually elect to prosecute and on what timeframe is, of course, a very different question. But the fact that the firms may well have violated—and continue to violate—criminal law should be unnerving in and of itself. It also presents follow-on risks, discussed further below.

Ethics Violations

Another immediate potential risk for the settling firms is in the area of professional responsibility. Every state bar issues such rules, which generally adhere to the American Bar Association’s Model Rules of Professional Conduct, to spell out the ethical duties of lawyers. These ethics rules may seem like niceties. But lawyers are governed by them; they can face professional consequences up to losing their license if found to have violated them. So the potential ethical risks that follow aren’t just eventualities that would be embarrassing or even shameful—they’re risks that could leave the firms without lawyers who are actually allowed to practice law. A more prolonged existential threat, to be sure, but an existential threat nonetheless.

A key ethical dilemma the deals elicit relates to the rule governing conflicts of interest. A core tenet of the profession is that lawyers must zealously, independently, and loyally represent their clients; one mechanism promoting that is the prohibition against conflicts of interest.

Among other things, the conflicts of interest rule prohibits lawyers from representing clients when doing so conflicts with their “own interests.” It’s not much of a leap to see the deals as in the firms’ best interest—indeed, they have effectively said as much. Likewise, lawyers can’t represent clients if there’s a conflict vis-a-vis “responsibilities . . . to a third party.” That means that by representing any client whose interests are contrary to the firm’s interest in placating Trump or that are contrary to the Trump administration itself, the very act of making the deals may well have placed the firms in violation of their ethical responsibilities.

Actually, the rules provide that a conflict exists where there is merely a risk that a lawyer’s professional judgment and duty of loyalty may be compromised because of his or her responsibilities to another client. There doesn’t have to be actual harm to either client.

For instance, assume the firm is currently representing an organization that is under criminal investigation by the Justice Department. Has the firm been advising the client to take a more cooperative stance toward the department because it’s afraid Trump may issue a new executive order against it? Is it possible that’s the case? Either one is a conflict.

In other words, merely making a deal suggests that the firms are acting, or are at risk of acting, in their interest or in Trump’s, not as independent advocates and counsel for their clients.

The Risks that May Come (or Almost Certainly Will, or Already Have)

Beyond the risks that the settling firms are already shouldering thanks to their deals, there are a number of additional risks that may lie ahead. Given how little we know about the exact terms of the deals themselves, let alone the internal workings of each of the firms, it’s impossible to know for sure. But the nature of the business means that there are an awful lot of possibilities.

Ethics Violations

Entering the deals in the first place presents ethical problems, but carrying on the regular work of lawyering in their aftermath presents many more. The first category of problems relates to having different clients, including—if the promises to provide pro bono services come to pass—several new ones, perhaps not of the firms’ own choosing.

Obviously a lawyer may not represent two parties that are adverse to each other in a specific proceeding—that is, he or she cannot be counsel to both plaintiff and defendant—but the rule is much broader than that. A lawyer may not represent two clients whose interests are opposed. Consider the following scenario: The administration directs the firm to represent a non-government employee—say, a satellite provider. The settling firm already represents a telecommunications company currently considering expanding into satellites. If the settling firm advises either client differently than it would were it not representing the other client, there’s a conflict. And if the settling firm may do as much, that’s a conflict, too. 

This being a rule written for lawyers and by lawyers, it is of course more nuanced. Lawyers can avoid going afoul of these kinds of conflicts rules by seeking the informed consent of both clients. (Though query how realistic it is to believe that the Trump-directed client—or the Trump administration itself, if for example the Justice Department is the client—would consent at all, let alone be willing to abridge the lawyers’ duty of confidentiality to the degree necessary to allow the other client to give truly informed consent. And query how anyone is going to be able to give informed consent if the firms’ deals with Trump aren’t written down anywhere.) But certain conflicts are non-consentable—including, as pertinent here, when parties become adverse to one another in a proceeding. What happens if the client Trump directs the firm to represent becomes embroiled in litigation adverse to one of the firm’s biggest clients? This would be a non-consentable conflict; neither the existing firm client nor the government-directed client could assent to the conflict. The firm would either have to drop one of them or be in violation of their ethical duties. Is Trump really going to let the firm decline the representation he has ordered? (And have existing firm clients—many of whom some claim were on the verge of fleeing if the firms chose to fight the executive order—thought about the eventuality that the firms may have to choose between them and angering Trump?)

Yet another ethical issue relates to attorneys’ duty to exercise independent “sensitive professional and moral judgment,” including a specific rule against taking direction from someone other than the client. But what if Trump disagrees with some aspect of how the firm is conducting its pro bono service under their deal with him? For instance, what if the firm’s lawyers, exercising their best professional judgment, advise that the best way to deal with a particular lawsuit is to reach a settlement, but Trump wants the client to fight to the bitter end? Or what if a pro bono client Trump has assigned to the firm falls out of his favor, and he demands that the firm stop working for them? By taking on the representation, the firm has established an ethical duty to the client from which it cannot so easily extricate itself without good cause. And if the firm has already appeared on behalf of the client in court, it will need the presiding judge’s permission to withdraw.

The Preamble to the Model Rules underscores why independence, in particular, is so crucial:

An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

So what happens if the government directs a firm to represent a client, on penalty of risking the kinds of punitive measures set forth in the executive orders? Aren’t the lawyers who have agreed to the arrangement quite literally making themselves dependent on the government?

Recall that these ethical rules don’t just lay bare some troubling potential consequences of the firms’ deals, particularly with respect to how their lawyers’ judgment, loyalty, and advocacy might be compromised. They are binding on every lawyer in each of the settling firms, and anyone who violates them is subject to disciplinary action up to and including disbarment. In theory, that could mean the settling firms are risking all of their lawyers’ licenses and thus their ability to do business at all. Unlikely, sure, but the gravity is instructive.

Actually, the gravity is even more acute with respect to authorities in the UK, which have jurisdiction over at least some parts of the firms’ conduct thanks to their London offices. In the UK, legal ethics are enforced by a separate regulatory body called the Solicitors Regulation Authority, and a related body, the Solicitors Disciplinary Tribunal. The ethical standards to which attorneys are bound are similar to those in the U.S., but the penalties for violating them can be more severe—especially because unlike state bar associations, they have jurisdiction over both individual lawyers and law firms. They can impose fines and other sanctions; they also have the power to close firms down.

Civil Liability and Other Risks

The settling firms also may face civil liability from their clients, their employees, and even competitor law firms. Perhaps more importantly, they face meaningful follow-on risks even if such civil suits don’t lead to major damages.

Claims from clients

Law firm clients are a likely source of civil claims. The most obvious relate to malpractice suits, in which a client would allege that it has suffered losses as a consequence of the firm’s misconduct or dereliction of duty. This is the way in which clients have a stake in the professional obligations spelled out in ethics rules described above. It’s not just that bar associations can strip an attorney of his or her license for violating the rules—clients can also sue over it.

There are any number of ways this could manifest because of the firms’ deals. Any conflict of interest has the potential, with the right facts, to develop into a grounds for a legal malpractice suit. The client would have to show that it suffered measurable harm and that the firm’s conflict of interest caused that harm, but it doesn’t take too much of an imagination to see how such facts might develop under the circumstances.

Assume that Client A, a long-time client of the firm, loses a bid on a lucrative government contract that instead goes to a favored ally of President Trump. Imagine further that Trump has made public statements alluding to how he’s in constant contact with the firm and it’s being very cooperative, or, worse still, he’s made noises about consequences if the firm failed to cooperate. Might the client wonder whether its lawyers failed to provide adequate representation because they feared what might happen if the client beat out Trump’s ally? If so, it may consider bringing a malpractice suit.

Or imagine that, in the lead-up to a major transaction, the firm suddenly terminates its relationship with Client B because of a conflict with a new client Trump has ordered it to represent. Imagine that in the scramble to find new counsel, Client B misses a deadline and the transaction falls apart, requiring Client B to pay a penalty. There’s another possible malpractice suit. And if the facts are right, there could be a breach-of-fiduciary-duty claim, too.

Similarly, imagine that Client C is a longtime firm client in a highly specialized industry with unique, complex legal needs. If the firm is compelled to withdraw from representing it, it will take Client C a lot of time to get new counsel up to speed. If it suffers concrete harms as a result, it might look for ways to hold the firms liable.

That doesn’t even account for the most straightforward apparent conflict: any representation in which the client is adverse to the government (which is essentially a given for all of the firms’ federal white collar and defense practices). If Client D is unhappy with the result of his criminal prosecution and believes his lawyers may have pulled punches for fear of angering Trump and thus facing an “existential risk” to their business, wouldn’t it only make sense to explore claims for ineffective assistance of counsel and malpractice?

What if the firms are ordered to disclose information about their clients to the Trump administration? Surely the clients would worry that the firms have broken attorney-client privilege, which can be the basis of a breach of fiduciary duty or breach of confidentiality claim. Actually, in some cases, simply disclosing the existence of a client at all could constitute breach of confidentiality. For instance, say that Client E, a space exploration company, hires the firm to pursue a merger with a peer company, and competitors would be able to deduce as much if the representation became public. If Trump ordered the firm to represent a different space exploration company, the firm would have to decide: enter into a known conflict of interest by representing both, breach its duty of confidentiality to Client E, or risk Trump’s retribution by refusing to represent the new client. If it chooses the first or second option, Client E may have a civil claim against it.

Without actual facts, it’s impossible to assess the merits of potential client claims. But even if such cases would be unlikely to prevail, the mere fact of them presents significant risk. A firm facing multiple civil suits from angry clients is hardly going to inspire confidence on the part of existing or prospective clients.

More concretely, even civil suits that are unsuccessful can go to discovery. Any client alleging malpractice will demand information about the firms’ deals with Trump, including communications between the firms and the administration, internal discussions about whether to make the deals, and the like. The firms will be able to assert attorney-client or other privileges to shield some disclosure, but those privileges won’t reach everything (plus there’s the risk the court will consider whether privilege is waived, including under the crime-fraud exception). Surely the firms wouldn’t want these things to become public. Neither, presumably, would Trump.

With or without discovery, defending against civil suits is disruptive. Firm lawyers who would otherwise be deployed to serve clients will have to be assigned to work on defending the firm itself. Yes, they’ll hire outside counsel, but as any client knows, there’s no avoiding the time, energy, and resources required to litigate, even if an outside lawyer signs the brief.

Another risk: as all of these firms know better than most, litigation isn’t cheap. Defending against malpractice suits would typically be covered by malpractice insurance, so they may be calculating that the cost won’t come out of their own pockets. But malpractice insurance policies typically exclude coverage when the lawyers have taken action for their own profit. If firms have violated their duties to their clients because they fear that Trump’s wrath would destroy their business, isn’t that for their own profit? If so, the firms will be paying the bills to defend the malpractice suits against them.

In short, the firms say that they’ve reached these deals because clients would flee if they fought Trump; by capitulating, they’re just giving clients different reasons to flee.

Employee Claims

Several attorneys at the settling firms have objected to those firms’ decisions to reach agreement with the Trump administration, and some have resigned from the firms in protest. Could current or former employees at the settling firms sue the firms based on the agreements with the administration? It is at least a risk worth considering.

First, there are possible employment law claims. Employees who believe they were fired or passed up for a promotion because of the firms’ promise to, as the second Paul Weiss Executive Order put it, “commit[ ] to merit-based hiring, promotion, and retention, instead of ‘diversity, equity, and inclusion’ policies” may bring wrongful termination suits. Job applicants with Democratic Party affiliation who believe they weren’t hired because the firms feared being accused of reneging on their promise to “political neutrality” could consider discrimination suits. Employees who have dedicated their time to issues or clients vilified by the Trump administration—say, GLAD or Hillary Clinton—and, in the aftermath of the deal, believe that they are being treated unfairly, might explore lawsuits alleging harassment or a hostile work environment.

Second, there’s the possibility that employees, who have visibility into all sorts of internal communications and conduct, believe firm attorneys are breaching their ethical duties. Those employees might well file complaints with the relevant bar disciplinary committees. In fact, the Code of Professional Conduct actually obligates attorneys to report others’ professional misconduct if it “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.” At the extreme, this could mean that bar disciplinary committees are flooded with complaints about the kinds of ethical violations described above, that they investigate and find wrongdoing, and that they disbar a meaningful number of firm lawyers, leaving them incapable of carrying on business. But again, the complaints don’t all need to prevail to present a risk to the firms. If a firm’s major rainmaker is disbarred, it will hurt the bottom line (to say nothing of its reputation). The mere fact that complaints have been filed or that investigations are underway, if made public, might lead clients to reconsider their choice of counsel. And the complaints themselves could become public, thus airing allegations the firms might want kept quiet.  

Claims from Competitor Law Firms

Another source of potential civil liability comes from competitor law firms. Recall that both bribery (in violation of § 201) and extortion (in violation of § 1951) qualify as “racketeering activity” under the RICO act, which also applies civilly. The Supreme Court has described civil RICO’s “object” as “not merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to eliminating racketeering activity.” To prove a civil RICO violation, a competitor law firm would have to show that a settling firm qualified as an “enterprise”—broadly defined to include “any individual, partnership, corporation, association, or other legal entity—that engaged in a “pattern” (that is, two or more) of racketeering activity that caused injury to the competitor law firm’s business or property. A competitor firm might argue, for instance, that a settling firm’s provision of pro bono work—the bribe or “racketeering activity”—caused one or more clients to leave the competitor firm and instead retain the settling firm. In that scenario, the settling firms would face the risk of losing on such a claim as well as the cost of litigating it. 

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Some of the risks we’ve identified seem all but inevitable. Others may seem remote. But even where the criminal justice system doesn’t take action, the prospect that their lawyers may have broken specific laws may alarm clients enough to switch to counsel who aren’t tainted by potential criminality. Even where bar disciplinary committees decline to penalize lawyers for ethical breaches, or private plaintiffs do not prevail in their lawsuits, the mere existence of those efforts creates a meaningful risk. The public disclosure of alleged misdeeds can provide ample reason for clients to lose faith and take their business elsewhere, for firm lawyers to quit in protest, for promising lawyers to refuse to apply to work there.

In addition, all of this provides a conceptual framework that other actors can use to hold the firms accountable in other ways. Employees or clients inclined toward whistleblowing will find an eager audience in Congress. Several members of Congress have already expressed outrage at the firms’ deals. While Congress can’t hold the firms criminally or civilly liable, they have powerful tools to impose a different kind of accountability. They can hold hearings. They can issue subpoenas. They can conduct investigations. And in some types of proceedings, the firms won’t be able to assert attorney-client or other kinds of privilege to shield their behavior (or damning documents) from disclosure. Many of these tools may be left unused by the current Congress, which is under a Republican majority that has been far less critical of the firms’ conduct. But it’s worth noting that the minority party can use some of them without majority consent, and also that midterm elections could drastically change the landscape.

Presumably, the firms—sophisticated businesses with scores of capable attorneys—performed their own risk analyses along the lines of what we’ve done here. Did they identify the same concerns? Probably most of them, and undoubtedly others specific to facts we can’t know from the outside. But was their assessment of the danger compromised by their terror that a Trump executive order would mean imminent destruction of their business? Maybe.