Killing A Mockingbird

Lawyers Are Holding The Flashlight While Trump Buries The Carcass

Rule 1.2 Model Rules of Professional Conduct

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d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

I represented people accused of crimes my entire career. Awful crimes sometimes, that made them pariahs in the eyes of the so-called law-abiding public. Loathsome outcasts in their eyes not worthy of respect much less the Constitutional rights I exercised on their behalf. In such cases attorneys understand that the defense of those rights – including testing the prosecutor’s case through a trial if necessary – protects everyone. It can be dirty work in a nation that has been idiotically (without anything to show for it) Tough On Crime for decades and incarcerates a higher percentage of its citizens than any country in the world. Our answer to everything is to criminalize it – even to criminalize people – and it’s up to lawyers, usually underpaid and monstrously overworked public defenders, to use their education and experience to protect the innocent and, especially, the factually guilty. What Tough On Crime politicians call “technicalities” when an attorney is successful are actually guarantees in the Constitution that protect all of us.

So it happens that attorneys, obligated to zealously advocate for their clients, may appear to be thwarting the efforts of law enforcement to protect public safety. Attorneys are obligated to keep their clients’ secrets. Attorneys are obligated in trial to force the prosecutor – the people’s attorney – to prove every element of the charge beyond a reasonable doubt. Attorneys – no matter what they know – are obligated to ensure the jurors understand their clients are presumed innocent in the law.

But an attorney can never help their client commit a crime. Most of an attorney’s work is after-the-fact, and, even then, a lawyer cannot promote perjury or use their clients’ lies in trial if they know them to be false. And, while a lawyer “may discuss the legal consequences of a proposed course of conduct” with a client, they may not, ever, “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent”.

This, however, is exactly what a growing number of lawyers are doing right now on behalf of Donald Trump. They may be our biggest problem. And they should be ashamed.

I take this personally, as a lawyer and law professor. Lawyers, despite the glossy image preferred by streaming service show runners, are not hired guns. They have obligations to more than their own clients. In fact, the first obligation lawyers undertake, in the presence of their family, future colleagues, and a Justice or two of their state Supreme Court, is to support the Constitutions of the United States and their own state. The same U.S. Constitution the new lawyers had recently agonized over in law school. The Constitution that is subject to constant scrutiny and interpretation but has at its core meant certain things beyond responsible debate: That the U.S. has no king. That all persons are guaranteed Due Process. And that the right to counsel does not include a right to force your lawyers to help you commit your crimes.

The managing lawyers of mega firms Paul Weiss and Skadden Arps and this Administration’s appointees doing its antidemocratic bidding within the Department of Justice were apparently tragically absent the day this was taught in law school. Bad day to miss. Since the beginning of Trump’s rise to power libraries full of thought pieces have been written about various demographic or geographic or other groups’ support for Trump. It’s been blamed on economic anxiety, our public education system, religion, the inept Democratic Party, and other things. There’s truth in some form in all of that and decades from now in the event history is still being written at all it will be fully explored. Some people who supported Donald Trump, it will be concluded, had excuses.

Lawyers have none. The thickest, least cognitively agile, worst-class-attending, non-outlining graduate of any law school in the nation knows that the Trump Presidency is in the middle of the most illegal, unconstitutional, cruel, and unnecessary blitzkrieg against the Rule of Law the nation has ever encountered. This is an obvious and uncontroversial point. What isn’t obvious and should be very controversial is that he’s doing it with the assistance of (a) lawyers at the Department of Justice and in other Cabinet agencies and (b) lawyers at an increasing number of the nation’s largest and most successful law firms. All of them should know better. All of them do know better. All of them should be disbarred.

Trump and his MAGA administration know that the only thing standing between him and the authoritarian regime he is building is the Rule of Law. Business has generally fallen in line (as it always will). The churches won’t stop him (they never do). The Democratic Party are the Washington Generals[1] at this point. And the people? He doesn’t care, there aren’t enough of them, and nearly half of Americans polled still approve of his efforts even after *all of this*[2]. Our brothers and fathers and uncles and friends aren’t being killed in Vietnam so it’s difficult to imagine a group manifesting the energy of those protests today.

The last, already feeble, guardrails are found under the umbrella of the Rule of Law, the stewards of which are lawyers. In my classes I tell students they are preparing to be nothing less than “Ministers of Justice” and that in the (still) secular way in which we structure our society they hold a sacred trust: The understanding of the history, the why, and the how of the law that has among its highest purposes the prevention of the government Trump is to this point successfully and with very little resistance creating. Lawyers have to be on the front lines of that resistance.

Not running away from it like cowards and deserters like Paul Weiss and Skadden Arps. On one hand the Trump appointees with which he infected the DOJ are actively arguing for the destruction of the Republic and against the prosecution of certain crimes and criminals as if Donald Trump was their client (he is not – another day apparently missed in law school) and are arguably in violation of both their attorney oaths and possibly the criminal law. These Trump sycophants presumably have their own reasons and none of them are defensible. It’s good for their career. They’re White Supremacists. They’re misogynists. They’re Christo-Fascists. They think they look good in Brown Shirts. Whatever.

On the other hand, enormous private law firms - called Big Law in the industry – are supposed to be filled with the best and the brightest. The Ivy grads and law review editors and federal judicial clerks who made their bones billing 2400 hours a year who have a fleet of private cars at their ready so they can grab a quick dinner with a client and return to the office until 1am without missing a beat or even calling an Uber. They’re the ones you call if you’ve got the money and you want the best. In theory.

In practice, not so much. When the Trump administration threatened Weiss and Skadden because of representation Trump decided was contrary to his interests, former and present, these Big Law firms did the Smallest Possible Thing and “settled” with the President, if “settlement” can be defined as “begging for mercy and expressing an abject willingness to do whatever Trump wants”. 90 former Paul Weiss associates signed a letter saying that Managing Partner Brad Karp’s deal with Trump “made the firm a poster child for the administration’s effort to silence dissent” among lawyers. Further, the letter said “Instead of a ringing defense of the values of democracy, we witnessed a craven surrender to, and thus complicity in, what is perhaps the gravest threat to the independence of the legal profession since at least the days of Senator Joseph McCarthy”.

Under the agreement Trump rescinded an executive order that had stripped the firm’s security clearances, threatened federal contracts held by clients, and restricted its lawyers’ access to federal government buildings. Paul Weiss in exchange pledged $40 million in pro bono legal services that support Trump administration goals and agreed to an audit of the firm’s diversity hiring practices.

Skadden Arp’s executive partner Jeremy London reached a similar agreement and said in part the firm was "pleased to have achieved a successful agreement with President Trump and his Administration. We engaged proactively with the President and his team in working together constructively to reach this agreement. The Firm looks forward to continuing our productive relationship with President Trump and his Administration” It isn’t reported whether he was dictating this statement to his assistant while he was polishing Elon Musk’s Tesla in the Rose Garden, rushing because he still had to shine Trump’s golf shoes as he’d promised before the President left for Mar-A-Lago.

In response to these capitulations Trump said “I just think that the law firms have to behave themselves”. He’s getting what he wants, from the very people – the only people? – in a position to stop him. That’s the problem. The law firms, especially the wealthiest and most powerful, should most definitely not be “behaving themselves” to please him. But they are.

These firms who have already surrendered to Trump aren’t really, we know now, law firms at all. They’re just big businesses like the banks and hedge funds and international conglomerates they represent, no better, no worse. Their product may be the billable hour and not another commodity but in every other meaningful way there’s no distinction. The fact that they swore an oath to support the Constitution is a distant a memory to them now, as meaningful to their practices as their high school diplomas. They don’t stand for anything, so they’ve fallen for everything.

This is not about loyalty to a client, a sacred obligation. These Big Law firms didn’t represent Donald Trump. In fact, they represented clients in various postures of opposition to his administration. They had no duty to Donald Trump as he was not their client (he is now). An argument that they were protecting their actual clients from retribution from the administration doesn’t pass muster, either. Someone was going to represent those clients – they are among the most sought-after clients by law firms in the world. These clients would have no problem securing able representation elsewhere. Make no mistake, these firms were protecting their representation of those clients, not the clients themselves. They were protecting their fees. They were protecting their firm, their profit distributions, and their mortgages. Those are not good enough reasons to agree to do the bidding of a man in the process of dismantling this nation, inflicting cruelty upon millions around the world, and lighting the Constitution itself on fire.

In the interest of completeness, I’ll note that section (b) of Rule 1.2 of the Model Rules of Professional Conduct, section (d) of which was cited above, does state: A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. The agreements reached by Paul Weiss and Skadden Arps are, in fact, not merely “endorsements” of Trump’s “political, economic, social [and] moral views”. These lawyers agreed, specifically, to help the Trump Administration impose those views upon a nation that will find itself more and more helpless to resist every time a law firm or lawyer turns and runs from this fight. The fact that Big Law, at least these firms, is going to do this pro bono – for free – is a level of humiliation the word for which I don’t think exists in the English language.

Not everyone is built for these times. People of all walks are struggling with identifying the point from their own perspective at which Trump and his goons will have gone too far and that to live their lives as if things were normal would be a lie. A lie because people are being disappeared. A lie because foreign agents are spending millions bribing our President with unregulated crypto currency and memes. A lie because the Civil Rights clock is being turned back to 1962. A lie because the Treasury is being raided and Social Security, Medicaid, and Medicare threatened. A lie because their own friends and neighbors are being fired for their color, their gender, their speech. A lie because there are, effectively, no more rules – except for those lawyers can protect, in spite of the odds. Those who are built for these times are going to have to be brave, principled, and committed to a democratic future.

Unlike the directors of Paul Weiss and Skadden Arps.

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[1] The Harlem Globetrotters’ regular opponent who comically fall for every joke and stunt and lose, every single time.

[2] 49%: Harvard CAPS/Harris poll published March 31, 2025