Free Speech For People, a national nonpartisan legal advocacy organization, has filed legal ethics complaints in New York against two law firms—Skadden, Arps, Slate, Meagher & Flom LLP, and Kirkland & Ellis LLP—that entered into illegal agreements with Donald Trump and his associates, and have now taken steps to fulfill those agreements. The complaints, filed with the Attorney Grievance Committee of the Supreme Court of the State of New York, also call for investigations of members of the firms’ management committees who participated in entering into the illegal agreements. FSFP previously filed a legal ethics complaint against the firm Paul Weiss for making a similar agreement with Trump and his associates.

Last year, Trump began to abuse the power of his office to target and punish big law firms for suing the U.S. government to block unconstitutional or discriminatory policies, for hiring employees that Trump disfavored, and for taking on clients or causes that don’t suit Trump’s personal agenda. But he also apparently had another goal: to procure free legal services for himself and his allies, and to obtain some control over big law firms’ pro bono clients, as well as their hiring and promotion policies. To accomplish this, Trump began issuing unconstitutional executive orders against certain law firms, subjecting them and their clients to punishing sanctions in clear violation of their First Amendment rights, while the Equal Employment Opportunity Commission (EEOC) began a baseless investigation into twenty top law firms by demanding that the firms turn over extensive and protective information about their clients and internal practices. 

Perkins Coie, the first firm that Trump targeted via executive order, obtained a temporary injunction just six days after it filed its complaint in court. The judge in that case laid out clearly the myriad ways in which the order was plainly unconstitutional. Despite this, Trump continued to issue executive orders against more firms. Jenner & Block, WilmerHale, and Susman Godfrey all challenged their orders, and all obtained swift temporary injunctions. In all four cases, the district courts ultimately permanently blocked the orders, with the judge in the Susman Godfrey case concluding that “the Order is unconstitutional from beginning to end.” In addition, a separate lawsuit to block the EEOC investigation ended after the EEOC admitted that its invasive demands for confidential information and client lists had never been anything more than voluntary, and that most law firms never turned any information over to the agency. 

Neither Skadden nor Kirkland were ever subject to an executive order. But they made deals with Trump anyway, either directly or by and through Trump’s personal advisors and negotiators, in order to convince Trump not to issue one. Skadden agreed to provide $100 million and Kirkland agreed to provide $125 million in pro bono support to Trump’s chosen clients and causes; both firms also agreed to change their pro bono selection processes to better align with Trump’s priorities, specifically including “conservative ideals”; and to change their hiring, retention, and promotion practices by no longer considering diversity and inclusion. In other words, both firms made concessions of their resources, speech, and client selection in order to obtain political favor and evade or change government actions. Together with Paul Weiss, the first firm to make a deal with Trump to obtain rescission of an executive order, these powerful firms helped pave the way for Trump to reach deals with other firms. In total, nine firms agreed to provide nearly $1 billion in free legal services to Trump’s preferred clients and causes. Both Skadden and Kirkland have taken steps to satisfy the agreements. 

The purpose of the deals was clear: in exchange for these concessions, Trump would not issue punitive executive orders targeted at either firm. These were not official negotiations carried out with the U.S. government. These were not part of an official settlement, nor are the firms paying fines to U.S. agencies to answer to misconduct. Instead, these are concessions made to and for Trump and his allies, in order to prevent an official but unconstitutional government act.

The complaints alleges that the firms violated several of key provisions of the New York’s Rules of Professional Conduct when they entered into and subsequently began to fulfil these deals. These include Rule 8.4(b), which prohibits attorneys and firms from engaging in illegal conduct that “reflect[] on the lawyer’s honestly, trustworthiness or fitness as a lawyer”; Rule 1.7, which addresses conflicts of interest and prohibits attorneys from compromising their professional judgement; and Rule 8.4(a), which prohibits violating and inducing other attorneys—including colleagues or employees—to violate the Rules of Professional Conduct. 

There is no doubt that the executive orders Trump had issued against other law firms, and might well have issued against Skadden and Kirkland, were unconstitutional. And there is no doubt that Trump abused the power of his office when he used the threat of official government action to coerce firms into conceding vast resources and reshaping their hiring and representation practices. But no one—particularly not such powerful, well-resourced law firms—should enter into private deals with government officials in order to evade or obtain government action.

Skadden and Kirkland had other choices. And when they entered into negotiations, Perkins Coie had already obtained its injunction; two more firms obtained injunctions on the day that Skadden and Trump announced their deal, and before Kirkland and Trump announced their own. By making an unethical deal, they empowered Trump’s illegal bid to control law firms. And our country is seeing the fallout. The country’s biggest law firms—which draw billions of dollars in revenue each year and employ thousands of attorneys—have long provided important pro bono support to low-income communities and represent the vulnerable against government abuses. But now, in the aftermath of Trump’s retributive executive orders and the subsequent capitulation of some of the country’s largest firms to his demands, many firms have pulled back sharply on their pro bono work, even as Trump ramps up his abuses of power, undermines civil rights, and implements policies that harm our most vulnerable residents. During Trump’s first term, large firms represented clients in roughly 75% of cases challenging Trump executive orders; in his second term, this has dropped to just 15%.

As Judge Howard warned in blocking the order aimed at Perkins Coie, “[e]liminating lawyers as the guardian of the rule of law removes a major impediment to the path to more power.” Attorney independence is a cornerstone of the adversarial legal system,  and indeed—again as Judge Howard explained—“[t]he importance of independent lawyers to ensuring the American judicial system’s fair and impartial administration of justice has been recognized in this country since its founding era.” 

Attorneys must retain and guard their freedom to select clients, represent them to the best of their ability, and meet their ethical obligations at every step. Without attorney independence, judges and juries will not have access to the best and most fulsome legal arguments and presentations of evidence. If counsel is afraid of or beholden to opposing parties, clients may not be able to obtain representation or be sure they are getting the best advice. And if our country’s most powerful law firms capitulate to abusive government officials, then the United States loses a necessary mechanism for holding the government accountable to the Constitution, the law, and the people. It is why independence and rigorous adherence to ethical obligations are built into New York’s Rules of Professional Conduct, and why firms must be held up to these standards now more than ever. 

Read the ethics complaint against Skadden here.

Read the ethics complaint against Kirkland here.

Read the ethics complaint against Paul Weiss here.