JMM Is Not A Lawyer….

 …but he has a point. Reviewing the “agreements” between Trump and some law firms, it seems obvious to even him that these documents are full of sound and fury, signifying nothing.

Almost every part of the agreements are worded in ways that make the purported commitments basically meaninglessness. So for instance, each agreement has the firm agreeing not to do “illegal DEI hiring.” But that’s easy for them to agree to, as far as they’re concerned, because they don’t think whatever DEI or affirmative action hiring they do is illegal. So whatever “illegal DEI hiring” might be they don’t do it. End of story. And the same applies to pretty much all the other fairness related commitments.

Even the pro bono work, which now includes “other free legal services” is a bit less than it appears. I noted above that this part of the agreement appears to be with Trump himself apart from the presidency and continues past the duration of his administration. But the same language means that the notional commitment to either $100 million or $125 million in pro bono work is over an indefinite and actually unlimited period of time. So by the terms of the agreement Kirkland & Ellis or Cadwallader can run down that commitment over a century. Or two. Any amount of time is okay. Maybe Trump will still be assigning free legal work when he’s 200. I think Rodney [sic] Jackson said he’d probably live that long.

So, why? Well, that it feeds Trump’s ego is not insignificant. 

Why did the firms do it?

My own read is that the firms see this gambit as simply a necessary and mostly meaningless effort to get the White House off their back. I think they assume or hope that the political climate shifts and by the time it does they say these agreements were always BS. They’re unenforceable, made in duress and against threatened actions that were illegal. And that may happen. Who knows? Everyone is kind of hostage to fortune, or in this case, public opinion polls.

There are consequences, however.

On that front, I have already heard, albeit so far only second hand, of firms passing on the business of disfavored potential clients. So, ‘Hey, we’d like you to help us do X, Y & Z.’ And the answer comes back, “Look, it just doesn’t feel like this is the right time.”

Large law firms exist in society, as do the corporate and personal clients they serve. Whether they go to court or not, all lawyers are officers of the court and have ethical duties to the society that makes their professional practice possible. This is rarely and poorly recognized, but now is the time to recognize it. Of cous, law firms make decisions all the time about who to represent, and it often “just doesn’t feel like this is the right time.” But that “feeling” shouldn’t be coming from acts of the White House. Especially so overtly.

Lawyers owe a bit more to the courts, and the law, and society, than that. Some firms recognize that; some don’t. Perhaps society needs to enter the chat.

That’s the meta-view. There are also practical concerns for private parties:

That Skadden (implicated in Paul Manafort’s corruption as well as an attack on US DNS experts) and Kirkland & Ellis (which represented Alfa Bank on related issues) — among other leading US law firms — were dealing with a guy accused by Trump’s own insiders of soliciting kickbacks in return for Administration jobs? Oh gosh, it’s unseemly, the WSJ story suggests the lawyers said, but what choice do we have?!?!?!

Which brings us back to the amicus from Legal Ethics professors. It raises several real concerns about conflicts and informed consent for law firm clients.

Furthermore:

Just as the President’s decision to issue executive orders that sanction certain law firms is an official act, so too is the President’s decision to withhold issuing executive orders that would sanction other law firms. See McDonnell v. United States, 579 U.S. 550, 574 (2016) (holding that for purposes of construing § 201, an “official act” essentially has two components: (1) “the public official must make a decision or take an action” on (2) “something specific and focused that is ‘pending’ or ‘may by law be brought’” before a public official). A law firm’s commitment to provide valuable pro bono services to the President’s preferred causes, made “with intent to influence” the decision whether to issue or withhold an executive order targeting those law firms, would appear to meet the quid pro quo requirement of federal bribery law.

That’s not ew talking. She’s quoting an amicus brief; written by actual (i.e., not DOJ) lawyers.

Definitely a societal interest in this; the kind usually represented by…the Justice Department.