Advice for Paul, Weiss wannabes

I am not the senior partner of a global American law firm. I am not facing their difficult decisions, but I am also not cosseted by their many millions of dollars in earnings a year. 

All such senior partners face a dilemma following the capitulation by Paul, Weiss to President Trump, as covered by the Gazette in a number of recent articles.

In essence, when faced with a Trump executive order against it, Paul, Weiss did a deal with the president rather than fight the issues raised in the courts, as another of its cohort of law firms has done. The outcome of the Paul, Weiss-Trump deal has not received a kind reception from most commentators. The number of associates in large law firms calling on their employers to stand up to the administration’s threats is growing exponentially – leaping up every time I consult it – to over 1,300 at the time of writing.

If I were a senior partner wondering whether to jump into the abyss after Paul, Weiss, these are the principles I would try to remember, in the following order:

(1) History and memory are forever, money is for now. It is very difficult to do the right thing when financial and career disadvantages follow. But if events are playing out in the glare of publicity, and not in a dark room where no-one recognises you, history and memory are paramount. Loss of reputation and loss of a good name are worse than loss of money or rungs on the career ladder. (Of course, I hope that I behave well in a dark room, too.)

(2) When there are many lawyers available, it is not knowledge of the law which distinguishes you but judgement and the ability to foresee consequences. This is in two parts: first, judgement. The president has a reputation for saying what is advantageous to him regardless of the truth (crowd sizes, election victories, there is an endless list). It is not a shock that the White House has a different version of the agreement with Paul, Weiss to the one put out by Paul, Weiss, including very damaging clauses. A lawyer should think a thousand times before entering a deal with someone who has been shown to be reckless with the truth and the law - and who, on top of that, is longing to make fools of the legal profession. Loss of professional reputation as a go-to lawyer (and law firm) is worse than temporary loss of money or rungs on the career ladder.

(3) Second part: foreseeing consequences. Did the great litigators and deal-makers at the top of Paul, Weiss not foresee the risk? Like night follows day, the president, emboldened by its caving, soon issued another document against the legal profession, a memorandum entitled ‘Preventing Abuses of the Legal System and the Federal Court’. Among many similar clauses in the memorandum was this one:

‘I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.’

(4) Solidarity is an important human quality. If you alone are a victim, it is understandable if you try and cut a deal. But if you are not alone, and unity in numbers might help others with their fight, as well as restore the reputation of the big firms as repositories of values and not just money machines, then solidarity is better for your reputation than a struggle to save yourself before others.

(5) Cut the mixed messaging. Lawyers from abroad are watching the latest developments. The Law Society last week issued a statement which included the following: ‘We also stand by our US colleagues and the American Bar Association that raised the alarm about lawyers and law firms being targeted inside the US. We have a deep and enduring bond rooted in common legal heritage with the United States that makes us a cornerstone of international commerce and dispute resolution’. However (and this is a personal comment), it is difficult for others to help if there is mixed messaging: some resist, some cave, most are eerily silent. The wish to help is undermined.

(6) Finally, a point others might put first: the very essence of being a lawyer is to be independent, particularly from the government. The government may well pass legislation requiring us to act in this way or that, but it should be encoded in our identity that we do not in advance of a requirement by law or court order do a private deal with the government that dictates which lawyers we employ (audit of employment practices) or which cases we take on ($40 million in pro bono towards the president’s causes). No amount of money or prestige should undermine that principle.

Dear Paul, Weiss wannabes: just don’t do it.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society