This weekend, President Donald Trump issued a memorandum directing Attorney General Pam Bondi to “review conduct” by lawyers and firms who engage in “frivolous, unreasonable, and vexatious litigation” against the U.S. government.
“Accountability is especially important when misconduct by lawyers and law firms threatens our national security, homeland security, public safety, or election integrity,” the president wrote.
A week earlier, the EEOC, following an executive order issued by the president, sent demand letters to 20 law firms — 13 of them operating in Texas — instructing them to provide (1) their policies regarding diversity and inclusion as they pertain to recruiting, hiring and promoting lawyers and (2) any information on clients of the firm that impose diversity requirements on their outside counsel. The EEOC letter made it clear that it considers many of these policies illegal discrimination.
The response from Big Law and in-house corporate legal departments has been near silence. Privately, some leading legal industry insiders believe that the Trump administration is simply on a campaign to grab more power for the executive branch and that lawyers and judges are the primary obstacles because they are the advocates sworn to uphold the rule of law and to challenge the government when it overreaches.
Supporters of President Trump counter that lawyers are filing frivolous constitutional challenges, coaching witnesses and convincing liberal federal judges to issue improper nationwide restraining orders.
So far, very few lawyers at large or small law firms have publicly challenged the Trump Administration.
Why?
Texas Lawbook reporters working on three different stories this past week involving three different law firms suddenly found the doors closed to cooperation by the lawyers they planned to interview. Two of the cases involved pro bono representation in asylum cases. The third was a firm handling a healthcare matter involving a gay military veteran.
Lawyers at the three firms made it clear to The Lawbook that they stopped cooperating with our reporters because they fear reprisals against their law firm or their clients by the president or other political leaders who support him. One lawyer, whose firm represents large financial institutions in matters such as public bond issuances, said that a member of Texas Attorney General Ken Paxton’s office made it clear that Paxton’s team could make things very difficult for his firm and their clients doing business in Texas.
How should lawyers respond?
With 16,000 paid subscribers, including more than 2,800 corporate in-house counsel, The Texas Lawbook is establishing an open forum for lawyers, general counsel, law professors and judges to provide thoughtful, substantive responses to seven questions in our survey. The questions address how firms should handle governmental inquiries into law firms’ handling of such matters, including pro bono immigration defense, diversity and inclusion and alleged government overreach in other areas.
The Lawbook has basic guidelines for your responses.
- Responses to each question should be limited to 150 words.
- No anonymous responses will be published.
- Comments must directly answer the questions before venturing off into related matters or explanations.
- There will be no personal attacks.
- You are welcome to challenge the very premise of the questions we pose.
- We reserve the right to decline to publish comments.
The Lawbook seeks solutions and answers. Responses can be sent directly to Lawbook founder Mark Curriden at mark.curriden@texaslawbook.net or via this submission portal.
Here are the questions:
- What should be the response of lawyers and law firms to President Trump’s memorandum directing the attorney general to “review conduct” by lawyers and firms who engage in “frivolous, unreasonable, and vexatious litigation” against the U.S. government?
- What are the factors that lawyers and law firms should weigh when determining whether to tackle highly politicized issues such as asylum, DEI and other matters that may draw the ire of President Trump or other powerful government officials?
- Do the EEOC’s threats against law firms regarding their DEI policies and practices have legal legitimacy? Why or why not?
- How should law firms respond to the EEOC’s demands for information about their DEI policies and practices and those of their clients?
- What are the specific parts of DEI policies that determine whether they are legal or potentially illegally discriminatory?
- Perkins Coie has decided to fight the Trump administration’s EO targeting the firm in court, while Paul Weiss reached a settlement agreement with the Trump administration. What are the proper responses and actions that lawyers and law firms should take when challenged by the administration for representing highly politicized clients in matters against the federal government?
- Following the Sept. 11 terrorist attacks, two members of Bush administration suggested targeting corporate law firms that stepped forward to represent accused terrorists detained at Guantánamo Bay. In response, several high-profile corporate general counsel took public stands supporting the law firms that were doing the pro bono work. No one at the senior levels of the Bush administration ever took such actions. Do you believe that today’s corporate GCs should take similar positions, and do you believe that they will or will not?
Reminder: To submit your answers via the forum portal, click here
or email them to mark.curriden@texaslawbook.net.