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There has been much attention paid to what for many is a necessary conflation between the rule of law and the expectations of governmental protection of the discretionary activity of lawyers and judges. The issues are complex, of course, and the baseline expectations tend to shift over time. But the core of it tends to coalesce around the idea that there ought to be a substantial (how substantial changes in time and place) discretionary space within which lawyers may fulfill both their business, legal-systemic, and social functions as one of the key objects through which contemporary conceptions of a law based social-political order is realized. That space, in part, is meant to be recognized and protected by the State and its apparatus. That space is particularly important where the state and its apparatus serves as the platform within which lawyers must fulfill their obligations to clients--through the invocation of the judicial system and its process, or as a source of information to which they are entitled by law.
That protection extends, in large measure, though not completely, to actions by the state apparatus and its officials that appear to inhibit or chill the ability of a lawyer to pick and choose clients, to serve clients in good faith to the full extent of the ethical expectations of such representation, and to interpose claims and defenses and use strategically or instrumentally all of the mechanisms provided by, through, and as manifestations of a rule of law state in the service of their clients. Those protections are not cost free--reputations rise and fall to some extent on the way in which lawyers operate within the space permitted them under rule of law principles--as incarnated in and through law and ethical expectations. At the same time, the lawyer does not automatically or universally occupy a privileged space as against clients. Just as a lawyer may not be inhibited in freely choosing clients or declining representation; so clients might also be protected in their right to hire and terminate relationships with lawyers. In both cases the law mediates but also provides a privilege space for that interaction that seeks to avoid corruption or at least substantial deviation from the rule of law system based ideal.
At the same time, the expectations of the state, and the extension of rule of law obligations to the state and its organs and officials, also permits or ought to permit, the state to pick and choose, to hire and fire, and to develop opinions about and contribute good faith opinions available to the the larger community within which legal reputation is formed enhanced or impaired, where the state operates as a client within the marketplace for legal services. Unless the state is different (see, e.g. here). And it might be argued that the state is different--at least with respect to issues of access--to the mechanisms of dispute resolution and tights protection, certainly, but also as to access to information ans testimony on terms generally available to everyone in like circumstance and subject only to law. It might extend less to issues of hiring and firing, and perhaps less to officials (in the name of the sort of transparency that is cherished when exercised by clients) expressing their opinions about the character and quality of specific representations or lawyers--subject of course to the limiting principles of libel and defamation, and also grounded in good faith and the avoidance of the "abuse of position" to materially interfere with business relations (perhaps). Law might be used to narrow that discretion--perhaps reputational issues ought to be limited to making complaints to the proper lawyer regulatory body. But that is for the legislature to decide, or the courts if that authority has been properly delegated.
These are some of the issues swirling around President Trump's invocation of Presidential speech (opinion sharing) and presidential authority (prohibiting the hiring of certain firms by executive branch organs and non-cooperation, and revocation of security clearances) (President Trump on "Addressing Risks from Paul Weiss" and the Relationship Between Government and Outside Counsel). Law firms affected have appeared to follow one of three paths. One is to do nothing and find ways to mitigate potential damage (the private client analogue). Another is file a lawsuit effectively arguing tortuous or malicious interference with business relations and abuse of or exceeding authority (the direct challenge method). This was the path chosen by Perkins Coie. Now Paul Weiss has charted a third path--compromise and settlement. It was reported that shortly after the issuance of the directive, Addressing Risks from Paul Weiss, Paul, Weiss Chairman, Brad Karp met with the President and satisfied him that the law firm no longer posed the sort of threat to the State suggested in that directive, subject to a set of conditions.
Today, President Donald J. Trump agreed to withdraw his March 14, 2025 Executive Order regarding the Paul, Weiss, Rifkind, Wharton & Garrison LLP law firm (“Paul, Weiss”), which has entered into the following agreement with the President:
1. Paul, Weiss agrees that the bedrock principle of American Justice is that it must be fair and nonpartisan for all. Our Justice System is betrayed when it is misused to achieve political ends.
Lawyers and law firms play a vital role in ensuring that we live up to that standard as a Nation. Law firms should not favor any political party when it comes to choosing their clients. Firms also should not make decisions on whom to hire based on a person’s political affiliation. To do otherwise is to deny some Americans an equal opportunity for our services while favoring others.
Lawyers abandon the profession’s highest ideals when they engage in partisan decision-making, and betray the ethical obligation to represent those who are unpopular or disfavored in a particular environment.
2. Paul, Weiss affirms its unwavering commitment to these core ideals and principles, and will not deny representation to clients, including in pro bono matters and in support of non-profits, because of the personal political views of individual lawyers.
3. Paul, Weiss will take on a wide range of pro bono matters that represent the full spectrum of political viewpoints of our society, whether “conservative” or “liberal.”
4. Paul, Weiss affirms its commitment to merit-based hiring, promotion, and retention, and will not adopt, use, or pursue any DEI policies. As part of its commitment, it will engage experts, to be mutually agreed upon within 14 days, to conduct a comprehensive audit of all of its employment practices.
5. Paul, Weiss will dedicate the equivalent of $40 million in pro bono legal services over the course of President Trump’s term to support the Administration’s initiatives, including: assisting our Nation’s veterans, fairness in the Justice System, the President’s Task Force to Combat Antisemitism, and other mutually agreed projects.
Statement from the White House: “The President is agreeing to this action in light of a meeting with Paul, Weiss Chairman, Brad Karp, during which Mr. Karp acknowledged the wrongdoing of former Paul, Weiss partner, Mark Pomerantz, the grave dangers of Weaponization, and the vital need to restore our System of Justice.”
In response to the President’s announcement, Paul, Weiss’s Chairman Brad Karp said: “We are gratified that the President has agreed to withdraw the Executive Order concerning Paul, Weiss. We look forward to an engaged and constructive relationship with the President and his Administration.” (Donald Trump Truth, Social Post)
One might wonder about the ethics within a law firm of cutting a former partner loose in this way, though it is likely that there are many stories, mostly unpublished, about this sort of cutting of a finger to save the hand strategy within the American bar. And it is possible that this strategy could be undertaken with confidence if the sacrificed person (in this case) might have already found of a way of protecting their position--a sort of principled pragmatism approach. For some of the reporting on "the deal" see New York Times; the Independent; and more colorfully TMZ). The New York Times reported a statement by Mr. Pomerantz:
In a statement, Mr. Pomerantz denied he had done anything wrong. “I engaged in no wrongdoing by working as a prosecutor to uphold the rule of law,” Mr. Pomerantz said on Thursday evening. Along with Mr. Pomerantz’s status as a former partner, the firm represented him as recently as 2023 in connection with efforts by congressional Republicans to question him as they sought to undermine charges brought against Mr. Trump by prosecutors in Manhattan. (New York Times).
All of this accords with the general pattern of action that marks this Administration. That pattern perhaps best understood as one grounded in a merchant transactional phenomenology against suggests the way in which ideology is driven by action, which then shapes ideology applied to further action. It is action oriented, iterative, dialectic, and inductive in its patterns of behavior; a marked change from the last seventy of so years of deductive ideologically driven, systems techno-bureaucratic managerialism that marked the upper levels of elite conduct expectations in the United States. That change will have a dramatic effect on the way in which the concept "rule of law" is action oriented during the next several years. And it suggests that merchant transactional patterns produce what may be substantial changes in approach if not in outcome to those that would be expected within patterns of system, techno-bureaucratic models. In all likelihood the greater change will be in method at least in this field. But in others--especially the upcoming battle over the jurisprudence (and limits) of the judicial remedial power, probably also producing substantive change, one hinted at in the 1970s integration cases but now expanded and generalized. In the process the way one might approach rule of law may change substantially as well. At a minimum, it appears that the State may acquire greater leeway to act like a private client when it consumes services. It will likely have a much narrower ambit of action respecting cooperation and the suspension of privileges vis a vis the state if only on equal access and equal treatment grounds. That is fair one would imagine; but between action and its interdiction, the state may acquire a substantial space to use both to negotiate the nature of its relationships with lawyers. And it in this that space, and in the ethics of those negotiations, that the nature of the mutual obligations of lawyers, their duty, and the state may be re-imagined perhaps formally through law, or informally through patterns of action and expectation. In the process the older ideals of the expectation of discretionary room for lawyer discretion in the conduct of their work may evolve--at least with respect to the state. The nature of that evolution will likely emerge from the cocktail of silence (mitigation), litigation, and settlement.
The text, Addressing Remedial Action by Paul Weiss, follows below.
Addressing Remedial Action by Paul Weiss
By the authority vested in me as
President by the Constitution and the laws of the United States of
America, it is hereby ordered:
Section 1. Background.
On March 14, 2025, I signed Executive Order 14237 (Addressing Risks
from Paul Weiss) to address certain issues related to Paul, Weiss,
Rifkind, Wharton & Garrison LLP (Paul Weiss). I noted that
“[g]lobal law firms have for years played an outsized role in
undermining the judicial process and in the destruction of bedrock
American principles.” Paul Weiss is one of many law firms that have
participated in this harmful activity.
Earlier this week,
though, Paul Weiss indicated that it will engage in a remarkable change
of course. Specifically, Paul Weiss has acknowledged the wrongdoing of
its former partner Mark Pomerantz, and it has agreed to a number of
policy changes to promote equality, justice, and the principles that
keep our Nation strong, including: adopting a policy of political
neutrality with respect to client selection and attorney hiring; taking
on a wide range of pro bono matters representing the full political
spectrum; committing to merit-based hiring, promotion, and retention,
instead of “diversity, equity, and inclusion” policies; dedicating the
equivalent of $40 million in pro bono legal services during my term in
office to support causes including assisting our Nation’s veterans,
fairness in the justice system, and combating anti-Semitism; and other
similar initiatives.
This development should give Americans
hope. If the legal profession dedicates a fraction of its energy to
bringing justice to local communities, unleashing hard-working
businesses, strengthening the American family, and unifying our Nation,
all Americans will benefit.
Sec. 2. Revocation. I hereby revoke Executive Order 14237 of March 14, 2025 (Addressing Risks from Paul Weiss).
Sec. 3. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii)
the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)
This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE,
March 21, 2025.
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