“If anyone’s going to speak up, it should be law firms. If anyone’s going to take a stand, it should be law firms.”
As you may have heard, Donald Trump is punishing law firm Covington & Burling for giving pro bono representation to former special counsel Jack Smith. His executive order canceled security clearances for members of the firm and directed government agencies to review all contracts with the firm for legal work.
I had hopes that other law firms might issue statements of support for C&B, though those hopes weren’t very high. Judging from this article, I was right to be skeptical: “Some firm leaders, citing corporate clients threatening to walk if they get crosswise with Trump, have rejected outright or put up roadblocks to partners seeking approval to represent DOJ lawyers, FBI agents, and other civil servants who’ve faced various forms of attack.”
But the quote that led off this post didn’t come from the Covington articles. It came from this one about law firms downplaying or removing mention of their DEI policies since Trump and Elon Musk began their anti-DEI crusade. The article singles out K&L Gates, which “removed references to its diversity initiatives from its website, including mentions of the Mansfield Pledge and key demographic statistics.” This is what “obeying in advance” looks like, by the way.
The quote came from mediator Patricia Gillette, who went on to note, rightly: “All this misinformation that’s out there, about what DEI is all about, is fundamentally wrong, and lawyers should stand up for it.” Ask yourself if law firms would take down their “fearless advocacy” pages as quickly.
Observers in both these matters are talking about the potential “chilling effects” on law firms of Trump’s policies and decisions, but I think we’re well past that. Trump is not trying to “send a message.” He’s openly attacking those he perceives as his enemies. There’s no subtlety or subtext here. And you don’t have to look far afield to find an example of how this is going to go down.
Two weeks ago, the White House banned the Associated Press from the Briefing Room because they wouldn’t refer to the Gulf of Mexico as the “Gulf of America.” Observers waited, in vain, for other reporters and news agencies to walk out or otherwise show solidarity with their AP colleagues.
For their silence, the other WH reporters were rewarded yesterday by having the Trump administration revoke the White House Correspondents Association’s century-old control of press credentialing. It was never about the “Gulf of America,” an obviously nonsensical pretext. It was about whether news organizations would fight back even against nonsensical pretexts. The AP ban was a test, and the other news organizations failed.
Similarly, the Trump administration is now testing the legal profession. How many more law firms will unilaterally disable their equity initiatives to curry favour or avoid punishment? How few law firms will publicly support Covington & Burling, or have the courage to represent other politically unpopular clients? Someone in the White House is watching very closely to see what law firms do next.
This isn’t about a “chilling effect.” This isn’t the US government laying the groundwork for a future assault on the legal profession. This IS the assault. And if lawyers and law firms fold and retreat here, the assault will only intensify.
“If anyone’s going to take a stand, it should be law firms.” So how about it?
Editor’s Note – this article republished with author’s permission with first publishing on LinkedIn.
Editor’ Note: See also EEOC, March 17, 2025: “Today, U.S. Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas sent letters to 20 law firms requesting information about their diversity, equity and inclusion (DEI) related employment practices. Based on publicly available information, the letters note concerns that some firms’ employment practices, including those labeled or framed as DEI, may entail unlawful disparate treatment in terms, conditions, and privileges of employment, or unlawful limiting, segregating, and classifying based on race, sex, or other protected characteristics, in violation of Title VII of the Civil Rights Act of 1964 (Title VII). “The EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms,” Lucas said. “No one is above the law—and certainly not the private bar.” Title VII prohibits an employer from discriminating against an individual because of race, color, religion, sex, or national origin. Under Title VII, an employer initiative, policy, program, or practice may be unlawful if it involves an employer taking an employment action motivated—in whole or in part—by race, sex, or another protected characteristic. Title VII also bars employers from limiting, segregating, or classifying employees based on race, sex, or other protected characteristics in a way that affects their status or deprives them of employment opportunities, including in voluntary employee groups and activities which are employer sponsored. There is no “diversity” exception to these prohibitions. It is the responsibility of the EEOC to enforce the provisions of Title VII with respect to businesses and other private sector employers. The law firms that received letters from Acting Chair Lucas include:
- A & O Shearman
- Debevoise & Plimpton LLP
- Cooley LLP
- Freshfields Bruckhaus Deringer LLP
- Goodwin Procter LLP
- Hogan Lovells LLP
- Kirkland & Ellis LLP
- Latham & Watkins LLP
- McDermott Will & Emery
- Milbank LLP
- Morgan, Lewis & Bockius LLP
- Morrison & Foerster LLP
- Perkins Coie
- Reed Smith
- Ropes & Gray LLP
- Sidley Austin LLP
- Simpson Thacher & Bartlett LLP
- Skadden, Arps, Slate, Meagher & Flom LLP
- White & Case LLP
- WilmerHale