It is shameful and alarming that nine leading Big Law firms caved when President Trump threatened their financial bottom lines. But putting aside potential criminal exposure — both a perpetrator and a target may be guilty of bribery, for example — these timorous law firms may soon face practical problems that, ironically, affect their financial well-being.
The firms have a serious conflict-of-interest problem that has been hiding in plain sight.
A core element of the ethical rules that bind all lawyers in the U.S. is the understanding that a lawyer may not represent a client if that representation conflicts with the interests of other clients the lawyer represents, or other commitments made by the lawyer. Professional ethics requires that law firms must avoid such conflicts.
Having reached agreements with Trump, these law firms have now expressly aligned themselves with the interests of the federal government. The professional rules against serving two or more masters therefore should disqualify these firms from doing any work against the federal government.
The firms siding with the administration also represent important clients, many with claims against federal agencies. In such cases, if the government seeks to disqualify a law firm because of this obvious conflict, it ought to win.
If these law firms agreed to represent the federal government directly, as Trump announced, this would create an unmistakable conflict. Each American law firm is treated as a single entity, so each lawyer’s client is thus also the firm’s client. And there are few if any large law firms that don’t have cases against the federal government and therefore may not represent the government — even in unrelated matters. If Trump insists on direct representation, as he has touted, any law firm would have to drop all its other clients who oppose the government.
The rules forbidding professional conflicts may sometimes be waived, but any such waiver must come from both parties. Even if a firm’s clients were willing to agree to conflicted representation, why would the government ever waive a conflict in a vigorously disputed matter?
The firms that agreed to Trump’s deal are now in a very precarious position. Engaging in a conflict of interest without a proper waiver violates professional ethical rules in every state, and a firm’s lawyers thereby would risk serious professional sanctions.
It should therefore be extremely difficult for these firms to continue their work when the federal government is an adverse party. Paradoxically, such a major financial hit is far more likely than any possible criminal law exposure resulting from the deals. Trump and his minions need not fear any prosecution by the current Department of Justice.
Nonetheless, the firms that publicly aligned their interests with the federal government have demonstrated that they will compromise to please the president. This is shaky ground. The lingering threat of soft sanctions inevitably infuses the firm’s representation. If the agreement influences the judgment of any lawyer in the firm, this is a conflict situation.
In addition, those law firms that reached an agreement with Trump must worry about possible malpractice claims should any cases against the government go wrong. If there is the slightest evidence that the law firm walked on eggshells in their representation of any private client, the stench of unethical conflicts of interest might follow. Even ignoring the moral and reputational dimensions of these firms’ agreements, their bottom lines may suffer as well.
When Theodore Roosevelt described the American presidency as “a bully pulpit,” he did not mean an elevated platform from which to bully law firms into compromising their basic ethical and professional obligations.
Avi Soifer is an emeritus professor at the William S. Richardson School of Law at the University of Hawai’i. Judy McMorrow is professor emerita Boston College Law School. Paul Tremblay is a clinical professor and the Dean’s Distinguished Scholar at Boston College Law School.
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