How ‘Big Law’ might respond to Trump attacks

Transatlantic law firms with revenues north of £2bn, where profits per equity partners are routinely above £2m, and the gender pay gap is often 50% or over, are centres of wokery.

A quarter of a century reporting on the City, and visiting commercial firms in New York, Asia and Europe, and I hadn’t known that.

Not until the federal government’s Equal Opportunity Commission (EEOC) wrote to 20 such firms demanding information on their equality practices. It followed hard on the heals of President Donald Trump’s executive order ‘sanctioning’ three firms, Perkins Coie, Paul Weiss and Covington. The most serious and immediate threat has been to the business of Perkins Coie.

As an aside, it’s a total mystery how firms made the list of 20. There are transatlantic firms in the same professional bracket with similar DEI policies and practices that are not on the list.

The response from the American Bar Association and the International Bar Association has been forthright condemnation, a position their members approve of. The Law Society is among their international backers.

There is shock at all levels of firms in this global elite bracket. Shock that firms can be targeted for their pro bono work. Shock that such significant businesses, more used to a revolving door between government office and the partnership, can face an ‘existential threat’ based on nothing more than executive whimsy. Shock that the rule of law, including the position of the judiciary, can be put in such crass jeopardy in a large, mature democracy. And shock that JD Vance was ever a lawyer.

It’s time for bars and representative bodies to earn those member fees. It underlines the reality that no firm is so big that it doesn’t need its bar association.

But how should law firms themselves respond?

Hundreds of associates at these firms would like the partnership to publicly condemn the targeting of firms and the work of the EEOC, expressed in a letter they’ve signed, albeit mostly using their firm and PQE only.

The response of some firm’s leaders is to hope the attention at least ‘blows over’. Behind the scenes they will be working to facilitate a resolution, but they are notably saying very little. If you want to be a hero, one line of thinking runs, go work for Leigh Day.

If I were an associate, I’d probably sign the letter – but then I’ve spent 30 years in the Liberal Democrats, and might not be the best judge of how you ‘win’ a battle. ‘Big Law’ is altogether more hardwired to win.

The question I can’t answer is, if individual firms go the protest route, what next? What next if the 20 firms and their peers make clear that they detest and deplore Trump’s approach? What happens the day after the press release?

The time has come for a pointless sacrifice, as the scathing old quip goes.

Does that leave us with the ‘the attention’ll blow over’ strategy? Speaking for this option is an important feature of all this. The detail and the practice of DEI policies is a million miles from what ‘anti-woke’ obsessives think they are.

A diversity target is an aspiration. It is not a quota. ‘Outreach’ programmes are not recruitment. And internal support networks are voluntary meet-ups, not an appendage of the deep state.

In any case, the practices law firms hope will get them to their diversity aims are decidedly soft in many cases – a stress on mentoring and allyship.

Harder-edged policies like the ‘Mansfield Rule’ demand only a diverse shortlist for senior appointments. But the choice of a successful candidate is on merit, not DEI characteristics.

So there is a bit more going for the ‘blow over’ strategy than first appears – a chance that the EEOC discovers there are no Weapons of Mass Wokery and get bored having got their headline. It was all, for some firms, rather performative. Some may have wanted to review their policies anyway, in a young area where thinking develops, and sell this as their ‘response’.

Or targeted law firms may do no more than rebrand their DEI professionals as ‘talent progression managers’ – just as spies are always embassy ‘attachés’. The latter still do the job. They just aren’t called ‘spies’.

Law firms will want to quietly derisk their client base. A Trump pressure point is to use government instructions as a weapon – no work for firms his administration dislikes. I think top firms will reduce their dependence on government work, achieving the medium-term satisfaction that the US government will start to lose access to top-flight legal advice.

The queue to advise Tesla may also shorten.

There are some useful precedents.

Did law firms noisily protest Putin’s annexation of Crimea in 2014? No, but they scaled back their Russian presence, and when the Russian leader went for the rest of Ukraine, international firms were a shadow of their 2014 size.

This has also been the response of law firms to China’s deteriorating commitment to the rule of law, and its decision in 2021 to sanction Essex Court Chambers for simply being against China in disputes. A ‘China office’ has quietly slipped off the ‘must have’ list for many international firms.

Another bet is that action against law firms will get bogged down in the courts.

Harder to resolve is the threat to pro bono work. ‘Pro bono is our largest client,’ is the internal mantra of one transatlantic big hitter. There is genuine outrage among the lawyers at big firms that pro bono work has been targeted. Like George Clooney, one motivation to do blockbuster work is to fund the projects they love and are personally committed to.

The reprehensible pro bono grudges now playing out are historic grudges. It isn’t current work to be ditched. It is yet another area where firms might fall back on legal action, depending on the response, and again, where they should lean on their professional bodies for protection and support.

The US government’s attack on law firms and judges is extremely serious. If traditionally the business of America is business, these actions are bad for business, affecting business confidence and threatening the business of the firms attacked. Lawyers at all levels of transatlantic firms are horrified and in many cases angry.

But as they risk being picked off as individual firms, the vehicle chosen for solidarity, protest and protection is mostly the American Bar Association and the IBA.

Their other responses may feel unsatisfying when contrasted with the administration’s attacks.

But they still have an effect. Firms will likely derisk and divest reliance on government work. They will respond to the EEOC, firmly but non-performatively putting them right on their misconceptions, thereby becoming an unsatisfying target. Stateside, firms may rebrand or disguise their good works. Inevitably, they will also look to more stable jurisdictions as the places where they want to grow, which may also be where clients would now rather litigate their disputes.

And there may be the long-term satisfaction at firms that traditionally had a revolving door between government service and partnership, when any lawyers in government who have been part of this attack find the door has been locked.