Law Firms Take Fewer Pro Bono Clients After Trump's Unconstitutional Orders
Even though the president has lost every time the orders have come before a judge, big law firms are still hesitant to upset the king and incur his wrath.
President Donald Trump reentered office in January promising retribution against those he felt had wronged him, either during his first term or in his interregnum. Making good on that pledge, Trump issued numerous executive orders targeting law firms that have represented Democrats or other people suing or prosecuting him.
That, on its own, is a breathtaking abuse of presidential power—explaining why the orders have been repeatedly struck down. Still, it has had a chilling effect on those law firms and their willingness to take on clients the president might not approve of, especially those who rely on lawyers to take their cases pro bono.
"Dozens of major law firms, wary of political retaliation, have scaled back pro bono work, diversity initiatives and litigation that could place them in conflict with the Trump administration," Reuters reported this week. "Many firms are making a strategic calculation: withdraw from pro bono work frowned on by Trump, or risk becoming the next target." The outlet reached this conclusion after it "interviewed more than 60 lawyers, reviewed 50 law firm websites, contacted more than 70 nonprofits and analyzed millions of court records."
"Fourteen civil rights groups said the law firms they count on to pursue legal challenges are hesitating to engage with them, keeping their representation secret or turning them down altogether in the wake of Trump's pressure," the report found. "The retreat has been painful for the nonprofit advocacy groups challenging Trump's sweeping assertions of executive authority, limiting their resources for researching legal arguments, preparing briefs and pursuing litigation."
While it may seem counterintuitive, high-priced lawyers offering their services for free is actually an important part of the American legal system.
"Every lawyer has a professional responsibility to provide legal services to those unable to pay," according to the American Bar Association's Model Rules of Professional Conduct. "A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year."
Yes, providing free legal services to people who can't afford it is a boon to a law firm's reputation. But it's also a net positive more generally: "According to most estimates, about four-fifths of the civil legal needs of the poor, and two- to three-fifths of the needs of middle-income individuals, remain unmet," legal scholar Deborah Rhode wrote in 2004.
That's to say nothing of the nonprofit organizations that don't have pockets as deep as some corporate clients. And it doesn't help that the cost of legal representation has spiraled upward for decades, putting it out of reach for even some of the well-moneyed among us.
Attorneys goosing their reputations by providing quality representation to people with low incomes or nonprofits is a win-win situation.
But that situation is in jeopardy, as Trump has targeted numerous law firms over past advocacy for clients he doesn't like or even for employing attorneys he disapproves of. In one order, Trump singled out the firm Paul, Weiss, Rifkind, Wharton & Garrison LLP for employing Mark Pomerantz, an attorney who briefly worked for the Manhattan District Attorney's Office while it investigated Trump in 2021; in another, the president targets the firm Wilmer Cutler Pickering Hale and Dorr LLP, for rehiring Robert Mueller after he served as special counsel during Trump's first term.
The orders cite different criteria, but they reach similar conclusions: barring any of the targeted firms' attorneys from holding government security clearances or even entering federal buildings, including courthouses. But these are enormous firms: Paul, Weiss alone employs over 1,000 attorneys. Trump's order would dictate that none of them can represent clients in federal court, which would hobble their business.
Judges have thrown out four of the orders so far, accurately assessing them as fundamental violations of the Constitution and considerably beyond the scope of the president's authority. Nevertheless, several firms tried to get ahead of any hits to their business by placating Trump: Within weeks, nine law firms capitulated to his demands, agreeing "to provide a combined $940 million in free legal services to causes favored by the Trump administration, including ones with 'conservative ideals,'" Matthew Goldstein reported at The New York Times.
Neither side fared particularly well: Politico reported earlier this month that the firms that caved have suffered considerable financial and reputational damage, while the Trump administration has lost every time the orders have been challenged in court. And yet the fallout has reverberated throughout the legal profession, leading other law firms to avoid upsetting the king and incurring his wrath.
This result was completely foreseeable. "Amid an aggressive crackdown by the Trump administration against large law firms aligned against him, a worry has set in that types of pro bono legal work, where hundreds of lawyers from large firms mobilize in humanitarian crises, may no longer be politically viable," CNN's Katelyn Polantz wrote in May. "Several law firm partners who have done significant pro bono work in the past told CNN that lawyers at large firms now may think twice before pitching cases that would step too far into politics."
Law firms feeling pressured to provide nearly $1 billion in free legal services to causes the sitting president supports necessarily crowds out services they could provide to causes the president opposes—chief among them, suing the federal government.
In January, Trump issued an executive order stating that the Constitution does not confer birthright citizenship to children born of noncitizens—contradicting both the plain and historical readings of the 14th Amendment. The Supreme Court recently declared district judges cannot impose nationwide injunctions, meaning that until the lawsuits challenging Trump's order are resolved, a considerable number of families have infants with a citizenship status in limbo. The Court did clear the way for those affected by the order to take part in a class-action lawsuit against the administration, but if law firms are increasingly hesitant to take positions Trump disapproves of, that leaves little recourse for those affected by a plainly unconstitutional order.
And as ever, it's worth considering what happens when the shoe is on the other foot: If a Democrat wins the presidency the next time around, he or she would have the same powers Trump has wielded so recklessly. Last month, The Wall Street Journal reported on a handful of boutique law firms "with impeccable conservative bona fides" that have thrived in Trump's second term. What's to stop President Pete Buttigieg from targeting one of those firms in 2029, claiming their work on behalf of Trump or other conservatives constituted a threat to national security?
It would be a completely ridiculous and meritless argument, but arguably no less so than Trump's claim that Perkins Coie—a law firm renowned for its pro bono work—poses "risks" to the country because it "has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification."
Even though every single court to weigh in on the topic has slapped the administration down, the damage has been done.
"The process of defending constitutional rights relies heavily on the ability of private attorneys to bring lawsuits against the government," Daniel Ortner of the Foundation for Individual Rights and Expression wrote in March. "This requires lawyers to be free from official government pressure when choosing which clients and causes to represent. If lawyers are put in fear of federal government retaliation for representing clients who challenge the government or stand for unpopular causes, many injustices will never be challenged. The administration's actions represent a direct assault on this freedom."
