Deals like the ones reached earlier this year between the Trump administration and several major law firms could create conflicts of interest and other ethical issues that will be difficult for lawyers at those firms to overcome.
That’s according to a new ethics opinion issued by the influential District of Columbia Bar Association. Published in late October, the opinion does not mention Trump by name nor does it refer explicitly to the deals struck by firms. But it acknowledges that it has received “inquiries from bar members” about prospective agreements with the government that “may limit or shape their law practices.”
While the American Bar Association has sued the administration over the constitutionality of President Trump’s attacks on law firms, the D.C. Bar’s opinion is the most prominent statement yet by a local or state bar association about the ethical challenges firms and lawyers face when making such deals.
Potential Conflicts
In Ethics Opinion 391, the D.C. Bar’s ethics committee wrote that lawyers and law firms contemplating deals with the government must consider whether such conduct will raise issues under D.C.’s Rules of Professional Conduct.
Those issues, the committee said, may include:
- conflicts of interest that may arise when the firm or lawyer is working for clients who may be at odds with the government.
- improper restrictions on lawyers’ right to practice.
- interference with lawyers’ professional independence.
Lawyers, the opinion noted, “must represent clients ‘zealously and diligently.’ This includes the right of each client to conflict-free representation, because a conflicted lawyer may be tempted, consciously or otherwise, to pull punches in advocating for or otherwise representing her client.”
A firm facing such a conflict ordinarily has three options, the Bar wrote. It can seek a client waiver, decline or withdraw from a matter, or remove the cause of the conflict. “If a conflict is found to exist,” the opinion warned, “obtaining a valid waiver (from a client) may be difficult.”
As The New York Times noted, this warning “appeared to be a veiled reference to ambiguities around the Trump deals,” and suggested that “full disclosure could be impossible” because the government’s actions have been unpredictable.
“If the precise nature and breadth of the commitments made by a law firm are unclear or are subject to change unilaterally by the government,” the opinion said, “the firm cannot be confident of its ability to remove the cause of the conflict because the conflict may reignite with little or no notice.”
Law Firms Targeted
Not long after returning to office in January, President Trump issued executive orders targeting large law firms and lawyers who represented clients perceived as enemies of the administration.
Trump barred federal officials from engaging with the law firms or hiring any of their employees, ordered agency heads to end contracts with businesses that used the firms, revoked security clearances held by the firms’ lawyers and staff, and blocked their employees from accessing federal buildings.
Four firms—Jenner & Block, Susman Godfrey, Perkins Coie, and WilmerHale—fought back and won permanent injunctions from federal trial courts blocking the administration from enforcing the orders. The government is appealing.
Nine others made deals to avoid or rescind executive orders, including Skadden, Arps, Slate, Meagher & Flom, Willkie Farr & Gallagher, Milbank, Kirkland & Ellis, A&O Shearman, Simpson Thacher & Bartlett, Latham & Watkins, Cadwalader, Wickersham & Taft, and Paul, Weiss, Rifkind, Wharton & Garrison.
In exchange, the firms agreed to perform nearly $1 billion in pro bono work on initiatives supported by Trump and to dismantle diversity, equity and inclusion-related programs and preferences that administration officials claimed were illegal.
Negotiators’ Duties
While the firms said the agreements were limited to traditional pro bono matters like assisting veterans, military families and first responders, Trump has embraced a more sweeping interpretation. He has, for instance, suggested he would use the firms on issues like assisting the coal industry with leasing on public lands and to help him defend his tariff proposals.
Indeed, The New York Times reported in August that Paul Weiss and Kirkland had committed to doing free legal work for the U.S. Department of Commerce. Kirkland, the Times said, worked on recent trade deals the administration struck with Japan and South Korea.
According to various news accounts, Boris Epshteyn, a Washington lawyer and investment banker who has served as a personal attorney for the president, played a key role in making deals with the firms. He has also, according to news reports, connected firms with the Commerce Department to do pro bono work.
The D.C. Bar’s opinion, while not naming Epshteyn or any other lawyers involved, warned that those who represent the government in negotiating and implementing deals with law firms or lawyers must also consider whether they are violating ethics rules, “particularly those related to lawyers’ right to practice and their professional independence.”
“A lawyer who induces or assists another lawyer in violating the Rules of Professional Conduct is…guilty of a violation,” the opinion said. “Thus, a lawyer who represents the government in negotiating such an agreement also should consider this rule.”
Mixed Reaction
Opinions by the D.C. Bar’s 15-member Legal Ethics Committee are unsigned and designed to provide guidance to lawyers practicing in the District of Columbia. As The New York Times noted, they are not legally binding, but they are used extensively by the office that oversees attorney discipline, which is administered by the D.C. Court of Appeals.
With 120,000 members, the D.C. Bar is one of the nation’s largest bar associations, and given its proximity to the federal government, one of the most influential. Nonetheless, the bar’s opinion is not receiving rave reviews from legal ethics experts. The National Law Journal reported that while some see the opinion as a “road map for potential complaints against firms,” others believe it is too general to be particularly helpful.
Leslie Levin, a legal ethics professor at the University of Connecticut School of Law told the newspaper that the opinion “doesn’t add much that lawyers didn’t already know.” She suggested that the opinion is only useful because it places lawyers who negotiate on the government’s behalf on the hook for the potential ethics violations under Rule 5.6 of the American Bar Association’s Model Rules of Professional Conduct. Rule 5.6 prohibits lawyers from participating in making or offering agreements that restrict a lawyer’s right to practice.
Others, like NYU School of Law legal ethics professor Stephen Gillers said the opinion was premature and that the D.C. Bar should have waited until the U.S. Court of Appeals for the D.C. Circuit had ruled on the administration appeal of the permanent injunction won by Perkins Coie.
He also cited potential action by a New York court disciplinary committee, where complaints have been filed against firms that made deals. “Any useful contributions the [D.C. Bar] committee may have been able to offer are likely to have benefited from awaiting more detail in the decisions of those tribunals," Gillers told The National Law Journal.
No Action in New York
But action by the New York courts is unlikely to occur anytime soon. In early September, the New York Supreme Court Appellate Division’s attorney grievance committee said it would postpone an investigation into the firms that cut deals.
A group of law professors filed an ethics complaint against the nine firms that made agreements with Trump, arguing that they had violated New York’s legal ethics rules by giving the president “a war chest” of nearly $1 billion and by failing to uphold the independence of the bar.
“While in this case the Respondents are the victims of the illegality, they nevertheless had a choice to either litigate, as other firms did, or pay the bribes,” the professors wrote in their complaint. “They chose to be extorted and pay the bribes.”
The attorney grievance committee’s chief attorney replied that “the selection of clients or the allocation of pro bono resources generally fall outside the purview” of the committee. Because the appeal involving Perkins Coie is pending and “a judicial determination of such matters is helpful,” the committee would “defer further investigation at this time,” the chief attorney wrote.
Bloomberg Law, which first reported on the committee’s response and published a copy of the letter announcing the delay, wrote that the professors have asked the committee to reconsider its decision.
Questions at Home and Abroad
Questions about potential legal ethics issues emerged almost immediately after Trump and the law firms reached their agreements. In April, for instance, a group of legal ethics professors from Harvard Law School and Georgetown University Law Center filed an amicus brief supporting Perkins Coie’s efforts to overturn Trump’s executive order.
“Entering a deal with the government by which a law firm makes certain commitments, including the provision of valuable ‘pro bono’ services to causes favored by the president, makes it difficult for the lawyers in those firms to meet their ethical obligations as attorneys, and could potentially subject the firms to criminal liability,” the Harvard and Georgetown professors wrote.
The Wall Street Journal and other news outlets also reported over the summer that corporate clients have raised concerns that the expansive terms of the deals could trigger potential conflicts of interest.
And the firms’ deals also captured the attention of legal regulators overseas. Law.com reported in May that bar associations in Germany and the Netherlands had both issued warnings that the agreements made by global firms practicing in their countries could violate rules governing lawyer independence.
The German bar issued a position paper questioning whether the deals “cast doubt on the respective law firm’s independence from the government.” The paper noted that Germany’s Federal Code for Lawyers requires lawyers to maintain independence from the state and “avoid any contractual or other binding agreements that would compromise their freedom to act solely in the interest of their client.”
“Against this background,” the German bar said, “it appears possible and perhaps even probable that the respective law firms have violated the duty of independence by concluding these deals.”
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David L. Brown is a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms as senior content consultant.
