Cohen: Conditional resignation
President Donald Trump’s assault on the legal profession went up a notch on Saturday by ordering action against lawyers who bring “partisan” litigation against the federal government.
He directed attorney general Pam Bondi and the homeland security secretary Kristi Noem to prioritise “enforcement of their respective regulations governing attorney conduct and discipline”.
Ms Bondi was also enjoined to seek sanctions against lawyers who engaged in “frivolous, unreasonable, and vexatious litigation” against the US or in matters before executive departments and agencies.
The presidential memorandum claimed that examples of “grossly unethical misconduct are far too common”.
He cited Marc Elias, founder and chair of Elias Law Group, for being “deeply involved in the creation of a false ‘dossier’ by a foreign national designed to provide a fraudulent basis for federal law enforcement to investigate a presidential candidate in order to alter the outcome of the presidential election”.
The immigration system – “where rampant fraud and meritless claims have supplanted the constitutional and lawful bases upon which the president exercises core powers” – was also “replete with examples of unscrupulous behavior by attorneys and law firms”.
Mr Trump said immigration lawyers, as well as “powerful Big Law pro bono practices”, frequently coached clients to conceal their past “or lie about their circumstances when asserting their asylum claims”.
He said “far too many attorneys and law firms” have long ignored the requirements of the federal procedure code as well as their codes of conduct “when litigating against the federal government or in pursuing baseless partisan attacks”.
Further directions to Ms Bondi were that she “take all appropriate action to refer for disciplinary action any attorney whose conduct in federal court or before any component of the federal government appears to violate professional conduct rules”.
In doing so, she should consider the ethical duties that partners have when supervising junior lawyers, “including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate”.
Where the attorney general considered a lawyer or firm’s conduct warranted a sanction, the memorandum went on, she should recommend additional steps – including termination of any federal contract for which they have been hired – and that she should look back over the last eight years of litigation against the federal government in doing so.
Mr Elias hit back strongly, writing on social media that the memorandum represented an attack not just on him and his firm but on “every attorney and law firm who dares to challenge his assault on the rule of law”.
He continued: “President Trump’s goal is clear. He wants lawyers and law firms to capitulate and cower until there is no one left to oppose his Administration in court.”
He pledged “no negotiation with this White House about the clients we represent or the lawsuits we bring on their behalf”.
Mr Elias concluded: “Our democracy is in peril, and the decisions made by lawyers and their firms may very well determine the future of the rule of law in the US.”
Not many law firms have spoken out on the memorandum, however, although Albert Sellars, a small law firm in Massachusetts, sent out a pithy response saying: “Fuck that fascist nonsense.”
In the absence of a concerted response from the profession, Rachel Cohen, an associate at top firm Skadden, has taken up the mantle.
She came to public attention last week when she organised an open letter for associates to condemn the government’s actions – more than 600 have so far signed – and on Friday went viral with a resignation letter she emailed to colleagues giving two weeks’ notice, “revocable if the firm comes up with a satisfactory response to the current moment”.
She said this should include, as a minimum, signing on to the law firm amicus brief in support of Perkins Coie in its litigation fighting the Trump administration’s executive order against it, “committing to broad future representation, regardless of whether powerful people view it as adverse to them” and standing up for the diversity, equity and inclusion efforts that are under attack from the government.
“This is not what I saw for my career or for my evening, but Paul Weiss’ decision to cave to the Trump administration on DEI, representation and staffing has forced my hand. We do not have time. It is now or it is never, and if it is never, I will not continue to work here.”
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