Over the last fifteen years, I have delivered programs on behalf of women lawyers at law firms throughout the country as part of Best Friends at the Bar. Typically, those programs were sponsored by firm-wide women lawyers affinity groups because it was considered important to address the special challenges facing women lawyers as the result of gender discrimination and the work-life issues for mother lawyers, in particular.

However, recently some of those same firms have chosen to capitulate to or cooperate with threats by the Trump Administration in its DEI Executive Orders. By doing so, these firms are sending messages that they no longer consider it important to address those special challenges and others that are lodged under the wide umbrella of diversity, equity and inclusion. In fact, it now appears that some law firms consider it a liability to continue to care about these issues. Large firms, which have capitulated to the Administration’s demands or cooperated with the Administration’s DEI policies, include Kirkland & Ellis, Gibson Dunn, Holland & Knight, DLA and Simpson Thacher. Having presented programs at all of those firms, I am shocked.

The methods of capitulation and cooperation follow similar patterns and include erasure of references to gender challenges and gender preferences, deletion of information regarding community involvement, which might support diversity, equity and inclusion, and dedication of pro bono hours for causes that the Administration deems important. It is as if gender issues and challenges never existed. It is as if the problems presented by those issues all have been solved.

Well, pardon me for not celebrating. Denying the presence of gender challenges in today’s law firms does not make it so. The challenges STILL DO EXIST for two simple reasons — negative human nature that drives discrimination and the laws of physiology that result in only women as childbearers. So, the special gender challenges WILL CONTINUE, in spite of attempts to erase them for political and/or economic gain.

Fortunately, there is a flip side to these approaches. Not only have some firms like Perkins Coie, WilmerHale, and Jenner & Block fought back and sought injunctions against enforcement of the Executive Orders, other firms have refused to be cowed in different ways. Take, for example, Susman Godfrey and its refusal to hide or discontinue a program to benefit law students of color. We learned this week that Susman is forging ahead with this honors program and broadening its reach. And, Susman Godfrey also has become the most recent firm to sue to block enforcement of a Trump DEI Executive Order.

It is good to see these positive developments. Also good to see are results of a recent Above the Law survey demonstrating that 86 per cent of Am Law 100 firms believe that law firms making agreements with the Administration’s Executive Orders are giving in to extortion. Apparently billionaire Barry Diller agrees, according to comments he made to Bloomberg News announcing that he will not do business with firms that “cut deals” with the Trump Administration. If other large business clients agree, that could be a costly message to some law firms.

So, does that mean that those firms that capitulated to or cooperated with the Administration may experience buyer’s remorse? That they may have acted imprudently and too soon? Only time will tell. But what we do know now is that such capitulation and cooperation to government overreach is not what we had come to expect from firms of that reputation and stature.

Caveat emptor in the legal marketplace comes to mind.

As I watch an increase in the number of Biglaw firms that cooperate with or capitulate to Executive Orders generated by the Trump Administration, the reality of this slippery slide from protectors of the law to protectors of the bottom line becomes more and more disappointing and disturbing. By “cooperate” I refer to firms that have not been recipients of Executive Orders and are trying to avoid becoming recipients by taking “independent” actions to erase all references to DEI or anything that smacks of it. Diversity billing codes are disappearing as fast as affinity groups. By “capitulate” I refer to those firms that have gone all in, kissed the ring, and prepare for more demands that are very likely to come their way.

I only can assume that law students are equally disappointed and disturbed by these developments. Their futures are on the line. I have lectured at so many law schools across this nation and abroad as part of the Best Friends at the Bar project, and I have been delighted to meet students excited about their futures and full of enthusiasm to be joining the law profession. And, yet, today I see the possibility of that refreshing enthusiasm being burst like a giant bubble in the face of the impending threat to BigLaw and its response.

I know that I am not alone in my concern. Recently Dean Erwin Chemerinsky of UC Berkeley Law demonstrated his own concerns. In comments made during a presentation exploring the role that lawyers and their firms play in protecting the rule of law in America, Dean Chemerinsky encouraged students to stand up for what they believe is right when making career decisions. He later opined that he thought that a united front by law firms challenging Trump’s punitive Executive Orders likely would have prevailed as court losses for the administration piled up.

“I think this would have gone away relatively quickly,” he said. “I think partners and attorneys at these firms are going to have to make their individual choice regarding whether they’re willing to continue to practice at a place that’s … not standing up to attacks on the Constitution. You, as law students, have a choice to make: If you think you’re going to a law firm, one of the criteria — maybe the criteria — to use to decide is whether you want to go to law firms that fought … or law firms that capitulated.” (emphasis added)

I would like to think that other law school deans and law school career counselors are encouraging students to think the same way. BigLaw is only one way to practice law, and if BigLaw is disappointing you, it is time to broaden your search. It might be a good idea to choose a place where you can practice law and be proud of it.

You are young, you are smart, you are innovative. Fear of the future is not in your vocabulary.

You are unbeatable.

In recent decisions, DC Federal Judge Beryl Howell issued an injunction, followed by summary judgment, against the enforcement of any aspect of an Executive Order the Trump administration targeted against law firm Perkins Coie. In her decision, Judge Howell made it clear that those law firms that capitulated to similar Executive Orders would have won — at least in her courtroom.

Judge Howell began her 102-page order by quoting Shakespeare and wrote:

“No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies … In purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers’. … Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”

I made a reference to those same words of Shakespeare’s character Dick the Butcher in an article I wrote for the ABA Journal in 2020. The subject of that article was the threat to decency in the practice of law and what I observed to be the changed perception of the law profession. In recognizing the reason that Dick the Butcher went after lawyers — because they upheld the law — I struck the contrast and wrote, “It seems that far too many lawyers today are willing to give up the perception of standing for good, keeping the peace, facilitating justice and embodying positive values. They have allowed the effects of greed and a misplaced emphasis on power to infect their character and distort the profession in unimagined ways.”

I believe we are seeing that “infection” today and the bow to greed in the firms that capitulated to the Executive Orders AND DID NOT HAVE TO. They could have stood for right and the rule of law, but they chose to stand for wrong. I have to admit that, when I wrote that article five years ago, I did not anticipate how very great the threat to decency in the profession would become.

I also identified in a different way with Judge Howell’s decision, specifically with her question whether the government’s raising of security concerns about Perkins Coie was akin to what happened in the McCarthy Era. I know a little about that dark time in history. I was born and raised in Wisconsin, and Joe McCarthy was a US Senator from Wisconsin when he launched his heartless attack on what he believed were members of society with communist leanings. The televised McCarthy hearings were on for hour after hour in my family home. My lawyer father was personally acquainted with McCarthy, and he found the behavior shameful and an abuse of power, and he wanted his family to know it.

To see a federal judge recognize the possible equivalency between the McCarthy Era and what is going on in our society today should REALLY get our attention. Which makes it all the more unfortunate that as many as nine law firms capitulated to the Trump Administration’s outlandish demands in Executive Orders targeting them or have cooperated with the sentiment of anticipated Executive Orders before becoming the target of one. Dick the Butcher’s mission might have been easier today.