First Principle Of Legal Practice: “They Don’t Pay Us To Be Wrong”

 Even though he is not a lawyer, JMM argued soundly two weeks ago that the agreements between Trump and several major law firms (one is too many; more than calls into question the soundness of the profession at “the top”) were unenforceable.

Just Security now agrees:

In short, the President cannot enforce the law-firm “deals” imposed by his Administration.  The firms who “agreed” under coercion should renounce those “deals,” or publicly explain why they feel constrained to fulfill illusory bargains. If those firms choose to honor the “deals,” their conduct might well prove to be illegal.  No new firms should accept them. And potential clients and employees are entitled to question why a law firm has chosen to surrender control of its choice of future clients or cases to the U.S. Government.

That’s the conclusion. Much of the analysis is a review of first year contracts law (because contracts are so much creatures of common law, and because so many basic legal principles and concepts are found in contract law), from consideration to coercion. The bottom line there is what I said earlier, based on JMM’s presentation of what the agreements said: i.e., they were not contracts and therefore unenforceable.

But Trump, of course, isn’t bothered by legal niceties. Which raises problems I didn’t consider, but Democrats in Congress have:

As some Members of Congress noted in recent letters to the “settling” law firms, if these agreements are in fact honored, the firms who execute them will have offered free services to the Administration in return for their continued access. Such open, continuing collaboration between the government and the firms runs the risk of violating a host of ethics and state laws, not to mention possible federal law violations ranging from statutes forbidding corruptly promising or giving “anything of value” in exchange for preferential government treatment to the ban on donation of voluntary services under the Anti-Deficiency Act. The accepting firms should clearly renounce what may otherwise be construed as “pay-to-play” arrangements aimed to curry favor with the Trump Administration.

I mean, inevitably, you would expect these firms to have foreseen the devil’s bargain they were agreeing to. I said before I think they thought they were being clever. But as Just Security points out, there was never any agreement Trump wouldn’t simply be more coercive, and no way to enforce such an agreement if the law firms thought they had one.

These law firms were the “winged with awe, inviolable” ones. Now it turns out their reputations were smoke and mirrors and a house of cards. The smart law firms told Trump to take a flying leap and went to court, where they filleted him. The cowardly law firms thought they could buy off a psychopath with ink stains on paper. And then he demanded they provide pro bono work for at least the rest of Trump’s term to every law enforcement officer in the country in so much as a disciplinary investigation. Now they are damned if they do, as they thought they would be damned if they didn’t.

Now they just look like damned fools. Not at all the kind of people you want negotiating your contracts. Negotiating anything from a business agreement to a settlement agreement. And, of course, if they’d put themselves in such peril, why would you trust them to see around corners for you?

A lawyer’s job is to foresee the worst possible consequences, and plan accordingly. As a lawyer I worked with liked to remind me: “They don’t pay us to be wrong.”