It's Time for Lawyers To Fight Back
President Donald Trump has issued two executive orders precluding all lawyers at two leading Big Law firms from having security clearances, eligibility for government contracts or even access to federal buildings. What led to their unilateral blacklisting? Covington & Burling committed the offense of representing Special Counsel Jack Smith pro bono. Perkins Coie has represented the Democratic National Committee and various campaigns and used to employ the leading election lawyer for Democrats, Marc Elias.
Elias left Perkins Coie to form his own firm nearly four years ago. Williams & Connolly, one of the leading litigation firms in the country, has been retained by Perkins Coie and obtained a temporary restraining order from a federal judge, who said from the bench that the executive order sent "chills" up her spine. Last Friday, President Trump added Paul Weiss to the list, singling out Mark Pomerantz, one of the leaders of an investigation conducted when he was at the New York District Attorney's office. Pomerantz left Paul Weiss in 2012.
From the rest of Big Law, there has been largely silence. Lately law firms like corporations have professed "neutrality" on social issues.
Big law firms are big businesses. Two law firms recently declared that their revenues had exceeded $7 billion per year. Fixed costs, including rent on multiple offices, are enormous. Law firms also know that much of their cachet and ability to bring in enormous fees depend on their ability to get the right meeting or have their phone calls answered by various federal agencies. At the very least, they need to get into federal buildings.
Many law firms also rely on federal contracts or represent government contractors. The fear of losing clients is certainly real. And unlike many other big businesses, Big Law's assets have legs. If their law firm is blacklisted, productive partners afraid of losing clients can cross the street to law firms that stay mum. That is the business case.
But as I tell young lawyers, if all you care about is money, you should have become an investment banker. Lawyers have a unique skill set and a unique responsibility. The Book of Deuteronomy states, "Justice, justice shall you pursue" (Deuteronomy 16:11). The late Justice Ruth Bader Ginsburg framed and displayed this verse in her Chambers.
We as lawyers have the obligation to make clear that these executive orders are fundamentally unjust; they are directed not just at a few firms, but at all of us and at the legal system more generally. It rests on us to speak out against these orders, and to make clear that the legal profession views itself as bound by the same prohibitions until these orders are struck down or withdrawn.
If this administration is boycotting the bravest among us, we as lawyers should return the favor. And Big Law, with its multi-billion dollar revenue streams, has both the ability and the obligation to present a united front to this outrage to core principles of justice and free expression.
There is precedent here. When the president of Pakistan took power in a coup and dismissed judges who refused to take an oath to support the new regime, lawyers formed The Lawyers' Movement, also known as the Movement for the Restoration of Judiciary or the Black Coat Protests; they went on strike and marched against this threat to judicial independence and the rule of law. Numerous lawyers were arrested.
Just last month lawyers in Pakistan staged a mass protest against a plan by the government to pack the Supreme Court with regime loyalists. When the Israeli Prime Minister tried to overhaul the judiciary and jeopardize judicial independence, there were mass protests by lawyers in Israel.
Repressive regimes attack the independence of the judicial system and arrest lawyers who act as advocates for their clients. This includes Sergei Magnitsky, a Russian tax lawyer arrested for exposing corruption, who died in custody and gave his name to the Magnitsky Act barring and sanctioning those responsible for his death.
With all that is happening these days, why should lawyers care about other lawyers or jeopardize their own business. Indeed, why should anyone outside the legal profession care about what seems like an "inside baseball" issue affecting a bunch of millionaires?
At the heart of the Anglo-American legal system, and of our constitutional order, is the right to zealous representation before neutral factfinders.
When the government says, "We will not talk to these lawyers" it interferes with the attorney-client relationship and mandates that only the arguments of certain lawyers with certain political views will be heard.
When lawyers cannot receive government contracts, and by extension government contractors will lose work if they hire certain lawyers, it makes clear that government contracts will be awarded based not on competence, but based on political cronyism. Just as the professional civil service is being taken apart, so those permitted to deal with their replacements are being redlined.
In removing security clearances, those lawyers who represent clients in national security cases will be unable to represent their clients. I have had multiple security clearances, in representing Guantanamo detainees and the Libyan who was kidnapped in Libya and brought to the United States to face homicide and other charges in the deaths of the U.S. Ambassador and three others (he was acquitted by a jury of all homicide counts). In all of those cases, access to classified information was essential to representing these clients.
Taking on unpopular cases is at the essence of our professional ethics and responsibilities since the founding of the Republic. John Adams represented British spies. All lawyers, and Big Law especially, must show that we are one in fighting this first (but certainly not last) attack on the autonomy of the profession and rule of law. We want no favors, but we will not stand by as our colleagues, our profession, and our legal system are being dismantled.
Eric Lewis is chair of the international litigation firm Lewis Baach Kaufmann Middlemiss and is a leading figure in international human rights. His book on Guantanamo will be published by Cambridge University Press.
Reprinted with permission from the March 18, 2025 edition of The New York Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.