Paul Weiss Cut a Deal With Trump—That Doesn’t Mean It Caved

Critics have used words like “capitulated” and “caved” to describe the promises Paul Weiss made to President Donald Trump so he would drop his executive order against the firm. The characterization is either wrong or premature because it doesn’t closely analyze the firm’s promises. A White House release purports to describe the deal, but Paul Weiss chair Brad Karp, who met with Trump, described it somewhat differently to the firm’s lawyers.

Both descriptions are vague and poorly drafted, yet critics have resolved the vagueness to put the firm in the harshest light. They also have discounted the harm, even the threat of dissolution, that delays and a court battle could cause Paul Weiss, including client flight and problems recruiting and retaining lawyers.

Even taking the White House document as an accurate description of Karp’s agreement with Trump, much of the criticism is misguided. What exactly did the firm promise?

First, it pledged “the equivalent of $40 million in pro bono legal services” across the next four years to support veterans, fairness in the justice system, antisemitism efforts, and other “mutually agreed projects.”

In a March 23 letter to the firm, Karp said the firm commits over $130 million in pro bono services a year—more than three times what was promised to Trump across four years. Why is this objectionable? Perhaps because the government shouldn’t be able to tell a law firm how to devote its pro bono time. But would you litigate just to make that point?

Second, Paul Weiss promised “not to deny representation to clients, including in pro bono matters and in support of non-profits, because of the personal political views of individual lawyers.”

Why is that objectionable, apart from the intrusion on firm governance? Again, would you go to the mat to win that point? The firm remains free to reject a client, as it does now, either because its lawyers disagree with the legal merits of a claim or simply because it doesn’t want to work with a particular client.

The only concession, if it can be called that, is that the political views of individual lawyers won’t create veto power over which clients to accept. Surely, this is true today in any big firm.

Paul Weiss next promises to take on a “wide range of pro bono matters that represent the full spectrum of political viewpoints of our society, whether ‘conservative’ or ‘liberal.’”

What does it mean to say that a legal “matter”—not a person, mind you—represents a “political viewpoint?” Is a First Amendment challenge to a website’s terms of service liberal or conservative? What about a claim that a school board has failed to accommodate a student’s learning disability? Is an amicus brief supporting or opposing birthright citizenship liberal, conservative, neither, or both?

These questions defy answers, further proof of inept drafting and the insignificance of the restriction.

Finally, “Paul, Weiss affirms its commitment to merit-based hiring, promotion, and retention, and will not adopt, use, or pursue any DEl policies. As part of its commitment, it will engage experts, to be mutually agreed upon within 14 days, to conduct a comprehensive audit of all its employment practices.”

There are two promises here. First, DEI, which isn’t included in Karp’s description of the agreement, isn’t defined. It’s not a legal term or a term of art. If you ask 10 people what it means, you’ll get 10 answers.

If DEI policies violate legal obligations under anti-discrimination laws, they should be eliminated. But if DEI includes legal efforts to find qualified lawyers or students who wouldn’t ordinarily come to the firm’s attention through traditional recruitment avenues, then they are morally and legally commendable and should be protected. DEI is a meaningless term that is being abused for political ends. It should be retired.

The balance of this promise—retaining experts to “audit” the firm’s “employment practices”—is the most troubling. But again, we have a drafting problem.

If “employment practices” means the general methods the firm employs to identify qualified applicants, it should pose little problem. But if “practices” is read to include the disclosure of proprietary and confidential information about the firm’s current and former lawyers, job applicants, and clients, it’s unacceptable. Which is it? We need clarification.

There is a suggestion in the current debate that Paul Weiss was obligated to be brave for the rest of us, that it was required to fight Trump on behalf of the rule of law, and that its settlement was somehow a betrayal of some principle governing the conduct of private law firms. That is not so.

Paul Weiss’ first obligation is to the courts that license its lawyers, then to its clients, many of whom have business or cases with the federal government, then to its staff of 2,500, and finally to its own survival. Going to court could at best have invalidated the executive order against Paul Weiss, which would have been gratifying, but Trump’s power would hardly have been diminished.

The larger and unsettling truth here is that no law firm can stop Trump. Even the courts, to which lawyers have special access, are limited, as a practical matter and doctrinally, in what they can do. While other firms might have chosen (or hereafter choose) differently, we shouldn’t vent our anger and frustration at Trump by faulting Paul Weiss’s strategy to survive.

Democracy and the rule of law will have to find their savior in the same political process that led to our present dilemma.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Stephen Gillers, a legal ethics professor emeritus at New York University School of Law, was a Paul Weiss associate in 1969-71.

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