Lawyers Sitting Out Trump Fight Threaten Justice for Millions

The legal profession is facing an existential threat to its legitimacy—and it’s not the one grabbing the headlines. Lawyers across the country in recent months have protested, issued bar statements, and signed amicus briefs on the risks posed by the Trump administration to the rule of law. Our sustained, concerted focus on big law firms is working.

But it isn’t enough.

The dire and accelerating threat to the rule of law in the US isn’t confined to the legal profession’s upper echelons. It is affecting families all over this country.

While paying clients may live in “a nation of laws and not men,” tens of millions of our neighbors don’t. As of 2022, more than 90% of poor people’s civil legal needs go unmet or under-met. Unless the legal profession steps up and fulfills its unique responsibility, this shocking statistic is on the brink of growing yet more extreme.

The federal government is mounting a multifront assault on the rule of law as it impacts everyday Americans who can’t afford an attorney. For example, the White House has proposed eliminating the Legal Services Corp., or LSC, which funds legal aid offices nationwide.

Data shows that legal aid attorneys engaged in civil legal services, including immigration representation, are extraordinarily successful for their clients and generate broad societal benefits. The administration’s callous proposal is unsurprising. President Donald Trump tried the same move in his first term but caved in the face of bipartisan opposition and the full-throated advocacy of private lawyers around the country.

Destroying LSC would compound other Trump administration attacks on the nation’s legal fabric, including its efforts to: impound legal services funding for unaccompanied immigrant kids, survivors of domestic violence, and victims of natural disasters; intimidate attorneys from engaging in pro bono work; and decimate government enforcement agencies that check abuses.

Many of these actions are illegal and subject to ongoing challenges. And advocates’ litigation successes to date may have distracted us from remembering the executive isn’t acting alone.

Congress is weighing changes to the taxation of nonprofit organizations and charitable contributions and has toyed with granting unprecedented power to the executive to yank nonprofits’ tax-exempt status. Any of these steps could starve legal advocacy groups’ ability to serve low-income clients.

Courts also have a meaningful role in the access to justice, and in Lackey v. Stinnie this year, the US Supreme Court dealt a blow to individuals’ ability to secure representation on contingency when the government violates their rights. Lackey will mean more of these essential cases must be taken pro bono, because even securing preliminary relief will no longer trigger fee shifting.

The timing couldn’t be worse. Firms’ appetite to sue the government is in doubt, and the Department of Justice has begun dismissing suits against police departments, rescinding employment offers, and laying off lawyers who could bring such cases.

Inside every firm, nonprofit, and corporation, lawyers must ask how we can shore up the rule of law. Options abound.

Refuse to pre-comply with governmental overreach or illegal executive action. Expand pro bono while ensuring it goes to those with fewer resources and less power, against those with more.

Build support through bar associations to expand free local legal services, and urge Congress to protect LSC. Dedicate 1% or more of revenue to nonprofits.

There’s only one thing we can’t do: sit this out.

For the last six years—until my resignation last week—I served as executive director of the Skadden Foundation. There, I saw public interest lawyers’ life-changing, community-sustaining work firsthand.

More than 1,000 Skadden fellows have forsaken lucrative, high-status jobs to prevent struggling families from being illegally evicted; recover hard-working laborers’ stolen wages; help immigrants fleeing violence and persecution find safety and stability in new homes; keep kids on track to graduate when faced with discriminatory school discipline or insufficient accommodations for their disabilities; eliminate barriers to voting; and more.

Democracy and the rule of law thrive only when the laws we pass actually shape people’s lives as intended. Every lawyer knows legal advocacy is often needed to make clients’ rights real—especially for those who face the most barriers to successfully navigating these complex systems on their own. Skadden fellows have been a force for strengthening the rule of law.

The US’ yawning access-to-justice gap is an affront to the rule of law. So are lawless actions by state actors and the abandonment of societal commitments by private ones.

Our profession meeting more of the legal needs of individuals who can’t pay isn’t charity—it is central to lawyers’ role in a functioning democracy.

Rights can’t just exist in dusty law books, recited in classrooms and promptly forgotten, or in tiny font in contracts most of us don’t read and can’t understand. And rights can’t be reserved just for corporations and wealthy individuals who can pay for legal representation.

Few chapters in our history have more directly called on our profession’s skills and obligations than this one. The private bar must now step up in defense of equal justice, or we will all fall.

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

Kathleen Rubenstein is a public interest lawyer who recently resigned as executive director of the Skadden Foundation.

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